A Workplace Drug Testing Act for Australia
Allen, Jason Grant, Prichard, Jeremy, Griggs, Lynden, University of Queensland Law Journal
Testing employees on a mandatory basis for alcohol and illicit drugs (1) in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested (2), what are the corresponding obligations vis-a-vis the employees' privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.
This article proceeds in four parts. Section 1 reviews the literature on drug use in Australia and its estimated financial impact on Australian industry. It traces the development of workplace drug testing and outlines the employee privacy concerns that, to this day, remain the most compelling argument against the practice. Section 2 presents our tri-partite approach to justifying workplace drug testing. The elements that are drawn out by the literature, by experience, and by intuition in promoting the use of workplace drug testing are: productivity, safety, and integrity. But we also note that further bases may be relevant, most notably, third-party and public economic loss and environmental harm. It will be these principled elements that we consider will provide the foundation of legislative reform. Section 3 briefly outlines the sources of current regulation in Australia, including contract law, labour law, occupational health and safety law, anti-discrimination law and industry-specific legislation and precises why, even in conjunction, they have failed to provide a normative architecture that achieves an appropriate balance between employee interests and employer concerns that compel workplace drug testing. Having outlined the extent of workplace drug testing, the framework for its existence and the concerns with current regulation, the final section sketches the principles that underlie the form and content of a Workplace Drug Testing Act and a Workplace Drug Testing Regulation that we argue is necessary.
II DRUG USE AND DRUG TESTING IN AUSTRALIA
Alcohol and illicit drug use is prevalent in Australian society. The most recent national survey, with a sample of over 26,000 people, indicated that 1 in 5 respondents drank alcohol at levels that put them at risk of harm, while 14.7% of respondents had used an illicit drug (or non-prescribed pharmaceutical) in the 12 months preceding the survey. (3) Alcohol and illicit drug use is the source of significant economic costs as well as the social and human costs. A significant body of literature has grown around this question, falling into four main groups: studies that examine the prevalence of drug testing in particular workplaces, (3,4) those that compare workplace and general community drug use, (5) those measuring the impairment effect of drugs in the workplace, (6) and secondary analyses of large data sets to determine the prevalence of drug use in workers by industry. (7)
The data suggest two things. First, they suggest that drug and alcohol use is relatively prevalent in the general Australian community. …