Master Builders recently advised members of its concern that the Building Industry Group (BIG) Unions’ Drug and Alcohol Management Plan (DAMP) would not meet the requirements of the Federal Building Code.

In that article Master Builders also suggested that any employer that adopts the unions’ policy would be potentially seriously exposing their organisations, both civilly and criminally. This article provides clarity around those concerns.

The Unions’ BIG DAMP provides a three step process for drug and alcohol testing. The DAMP provides for employee representatives, most likely HSRs, to receive training and to be apportioned as Drug and Alcohol (D&A) Impairment Officer. The DAMP process provides the opportunity for any worker to nominate to ‘self test’ prior to ‘For Cause’ testing. A worker that is to be tested can call on the D&A Impairment Officer to undertake the self test. The self testing process does not actually involve the use of drug testing devices. It involves the D&A Impairment Officer, with the employer representative, utilising an ‘Observable Impairment Checklist’ (Appendix A of the DAMP) to determine whether the worker is incapacitated.

The unit of training that is to be provided to D&A Impairment Officers under the DAMP is HLTPAT304D Collect pathology specimens other than blood. As the name infers, this unit relates to the collection of handling of pathology specimens (such as drug tests). No part of the training relates to assessment of whether a person is impaired.

The Observable Impairment Checklist is extremely subjective in nature.

Part 7.2 of the DAMP provides that “If deemed to be impaired, the employee is to be tested in accordance with the testing methods clause” and “If not impaired, the employee shall return to work and all records shall be destroyed”.

This clause of the DAMP provides a clear means for workers to avoid drug tests when facing requests for a ‘for cause’ test.

In a case before the Fair Work Commission earlier this year the CFMEU challenged the termination of a mining worker who tested four times over the concentration level for methylamphetamine (Ice). The CFMEU argued that there was no conclusive proof the methylamphetamine level influenced Ms Cunningham’s abilities, a claim Commissioner Ian Cambridge described as “irresponsible”.

Commissioner Ian Cambridge was scathing of the CFMEU’s case stating:
“It was highly regrettable to observe during the hearing that an organisation, which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580-tonne truck whilst having methylamphetamine in their body at a level four times the reportable cut-off figure.”

The CFMEU was prepared to mount an argument in the Fair Work Commission that a worker that had such a dangerous concentration of Ice in her system was fit for work. How will arguments play out on a construction site where a HSR/Shop Steward/D&A Impairment Officer applies the subjective ‘Observable Impairment Checklist’ and then argues that the worker is not impaired so as to avoid a drug test?

The Victorian commercial construction industry is one of the last industrialised industries to move towards drug and alcohol testing. Drug and alcohol testing has been a long standing practice in the mining, rail, civil, aviation and road transport sectors. There is already a strong state of knowledge that employer policies that are used in these industry sectors do not include an impairment assessment prior to the performance of testing.

The idea that where an employer would have in their business a testing policy that provides for ‘for cause’ testing would not progress immediately towards testing a worker following an incident, instead deferring to the use of a subjective paper based assessment, is totally out of step with the broad number of drug testing policies that already exist in industry. The process is anathema to good policy.

Given the state of knowledge that exists in relation to the effects of drugs and alcohol and effective D&A policies, an employer facing a coronial investigation or civil trial for negligence will need more than a flawed policy approach condemned by the Fair Work Commission to defend themselves. It should also be noted that under the OHS Act 2004 the duty to provide a safe work place rests with the employer, not with HSRs or the unions. OHS policies are put in place by employers so as to enable the employer to meet their duties under the Act.

The CFMEU have already moved away from their original position of opposition to drug testing and have subsequently altered their stance on blanket testing. Whilst they have recently moved towards random and for cause testing, the argument for subjective impairment testing in our view compromises best practice.

The BIG DAMP is not a policy endorsed by employers. Master Builders regards the document as not being in an employer’s best interests and strongly recommends that members not adopt it.
A template can be downloaded here. If you have any questions please contact the OHS Unit on (03) 9411 4555.