Members will recall that changes to Building Code 2013 requiring contractors to have a comprehensive policy for managing drug and alcohol issues in the workplace commence from 16 October 2015.

The new requirements are modelled on those that previously applied under the Victorian Construction Code, with Fair Work Building and Construction (FWBC) responsible for monitoring compliance with Building Code.

Master Builders has now run two additional information sessions for members, with expert legal perspectives from Herbert Smith Freehills Lawyers and Ashurst Lawyers. The following are key learnings arising from the respective information sessions:

• Employers who are Building Code bound, or are striving to do future work where such requirements come into effect, must have a fitness for work policy in place that outlines drug and alcohol management, including an appropriate testing regime
• The drug and alcohol testing must be an “objective medical test”
• The legal experts believe any form of subjective testing “is weak” and “would not be defensible in a court of law if a fatality or serious incident occurred”
• The legal experts experts also believed “subjective testing would undermine the deterrent affect which is created by random, objective” drug and alcohol testing
• Both legal teams pointed to “landmark” findings from the fair work commission which set “precedents” for drug and alcohol testing in the workplace. Previous attempts by the CFMEU to discredit comprehensive drug and alcohol management and testing were described by a Fair Work Commissioner as “irresponsible”
• The law firms highlighted to members that “findings from the fair work commission have favoured safety” above “personal privacy” when it comes to drug and alcohol testing

A consensus view of both law firms and Master Builders is that adoption of the the Building Industry Group (BIG) of unions’ drug and alcohol management plan (DAMP) would not be in an employer’s interest, would be irresponsible and may potentially expose employers legally (civilly and criminally).

Fair Work Building and Construction field officers will be thoroughly auditing employer’s policies to ensure it meets code requirements, commencing in February 2016.

For further information contact Master Builders OHS department on (03) 9411 4555.