The Victorian Government’s decision to abolish the Construction Code Compliance Unit and the Victorian Code and Guidelines, announced on 15 January 2015, means that head contractors will no longer be required to submit details of their policies for drug and alcohol testing when tendering for State Government-funded projects.

The requirement for mandatory drug and alcohol testing on State Government-funded projects had been announced by former Premier Denis Napthine on 6 February 2014. Following that announcement, Master Builders conducted a number of briefings on drug and alcohol testing and provided member companies with advice in relation to the implementation of their policies.

As a consequence of the Government’s recent announcements, some members may now be considering abandonment of their plans to implement policies that included random and for-cause testing.

The issue of methamphetamine (ice) usage has prevailed in the headlines over the last six months, with the subject appearing in newspapers and on talk radio with increasing frequency. Members should consider their future position in relation to drug and alcohol testing very carefully.

One of the biggest concerns with the former Government’s expectations for mandatory testing was the potential for industrial unrest with companies introducing policies that included testing. The CFMEU have in the past argued that builders and subcontractors who introduce drug and alcohol policies that include testing are potentially in breach of the Enterprise Bargaining Agreement (EBA).

Members are reminded that the question of employers having such a policy in place has been tested by the Courts and been found not to be in breach of the EBA.

In June 2012 the Full Bench of the Federal Court dismissed an application made by the CFMEU requesting an overturn of a decision made by the Full Bench of Fair Work Australia (FWA) under a dispute settlement procedure contained in an enterprise agreement. The body had determined that an enterprise agreement with a drug-and-alcohol-management policy that was silent on testing did not prohibit a mandatory random drug-and-alcohol-testing regime applied by the employer.

The Federal Court found, too, that the EBA did not prohibit mandatory random drug-and-alcohol testing, and that there was nothing in the terms of the agreement that excluded coercive measures, where necessary or desirable, in the interests of safety.

The issue of CFMEU’s position to drug and alcohol testing has also recently come under fire after they were labelled “irresponsible’” by Fair Work Commissioner Ian Cambridge after they attempted to argue that there was no proof a worker who tested four times over the reportable cut-off level for methamphetamine was incapacitated.

Master Builders believes that companies wanting to introduce drug and alcohol policies that include random and for-cause testing should be able to do so freely, without impedance from the CFMEU, and that the decisions highlighted above provide a positive reflection of the attitude of the Courts and the Fair Work Commission toward employers who proceed in that direction.