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PETERHOLLAND,∗AMANDAPYMAN∗ANDJULIANTEICHER∗
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lcohol and illicit substance abuse in the workplace is an important human resource and industrial relations issue. Although more sophisticated measures have been developed to test and monitor drug use in the workplace, and despite tacit union support on occupational health and safety grounds, the implementation of drug testing procedures remains contentious. This paper examines the arguments for and against drug testing in the workplace using an Australian case study where drug testing resulted in industrial disputation that led to legal intervention and remedy.INTRODUCTION
Alcohol and illicit substance abuse is becoming a major concern in the Australian workplaces (Miletic 2004). The drug testing debate traverses a range of theoretical perspectives including human resource management, industrial relations, labour process theory and ethics. In this paper, we attempt to incorporate these themes within the ongoing debate on drug testing in the workplace. By using this broad framework to view the issues on drug testing in Australia, a more comprehensive understanding and interpretation of the issues is developed. The perspectives of the important players are used to examine the contested terrain of drug testing and a case study of the introduction of drug testing is used to provide a deeper understanding of the complex and contentious issues which arise.
This paper is organised into five parts. In the first section, the issue of drug and alcohol testing is examined from the perspectives of employers, employees and trade unions. Fitness for duty and holistic approaches to drug and alcohol testing are reviewed in the second part of the paper. In the third section, a case study of the implementation of drug testing in three BHP mine sites is reviewed to explore the complex practical issues related to drug testing. In the fourth section, the issues recognised in the literature are related to the key issues that emerged from the case study. The final section concludes, showing the complex and contentious matters pertaining to workplace drug and alcohol testing.
THE ISSUE OF DRUG AND ALCOHOL ABUSE AT WORK: DIFFERING PERSPECTIVES
Substance abuse and the potential dangers it poses in the workplace are well doc-umented. For example, Wall (1992) identifies that both illicit substance abuse and
∗Monash University.
‘recreational’ substance use (e.g. alcohol) impact negatively on almost all indus-tries in Australia, causing substantial costs in both human and economic terms. While acknowledging the lack of accurate data concerning drug use in the work-place (Allsopet al. 2001; Allsop & Pidd 2001), the National Health and Medical Research Council (NH&MRC) (1997) found that 22% of the working population drank alcohol at harmful levels and up to 27% of the working population expe-rienced alcohol-related problems annually. According to International Labour Organisation (ILO) estimates, between 3 and 15% of fatal work accidents in Aus-tralia are related to drug and alcohol use (Miletic 2004; Wright 2004). A survey by an Australian health company, Health Works, in 2002, found that 80% of employers supported mandatory drug and alcohol testing in the event of a work-place accident (Thomas 2002). Similarly, in a recent independent inquiry into workplace drug testing in the UK, 78% of employers indicated that they would consider drug testing if they believed that substance or alcohol abuse was affecting staff productivity (IIDT 2004).
The relationship between drug use and accidents at work is an important issue, because occupational health and safety (OH&S) legislation in each Australian state places an obligation on employers to provide a safe workplace for all employees and visitors to sites which they control. Employers are subject to strict liability under this law and face significant fines if found to be in breach (Keenoy & Kelly 1998). That employer liability extends to employees’ actions and/or omissions, regardless of the employee’s state of mind, emphasises a key argument for drug testing in the workplace.
Drug testing is commonplace in the USA where research indicates that the use of drug testing programs in both employment and pre-employment situations has been an important factor in reducing absenteeism and accidents, and is the most common method of removing the issue of substance abuse in the workplace (Osterloh & Becker 1990; Greenberg 1992; Hartwellet al. 1996; Flynn 1999). This evidence provides a compelling case for implementing drug testing to ensure that employees meet their contractual obligations to a satisfactory standard and that employers meet their duty of care requirements under OH&S legislation (DesJardine & McCall 1990). Implicit in this argument is that the employers who have not implemented drug testing policies and programs are maintaining unsafe workplaces (Redeker & Segal 1989). However, the cost-effectiveness and the overall value of drug testing has been questioned (Gip 1999: 16):
The American Civil Liberties Union cites analysis by a committee of the National Academy of Sciences (NAS) which found that most workers who use illicit drugs never use them at work, and when they use drugs on their own time, they do so in a way that does not affect work performance.
important issue, not every job has the potential to do harm to others. DesJardine and McCall (1990: 204) argue:
To say that employers can use drug testing to prevent harm is not to say that every employer has the right to know about the drug use of every employee.
In this context then, less intrusive testing alternatives such as impairment testing to determine fitness for work may be more effective, and less likely to raise privacy and fairness concerns (Sorohan 1994). These are important considerations for employees and their unions when drug testing is implemented in the workplace. From the employee-union perspective, the principal consideration is the right to privacy (Scott-Howman 2004). Using Mill’s principle of liberty, Bowie and Duska (1990: 89) contend that employees have the right to do whatever they wish as long as it does not harm the employer. It follows that if a person chooses to take illicit drugs outside of paid work time, it is of no concern to the employer, provided it does not impinge on work performance (Bowie & Duska 1990; Norington 2004). In addition, Maltby (1987) suggests that drug testing suffers from accuracy problems. Typically, drug tests cannot determine whether the effects of illicit drugs, which may remain in the system for days and even weeks, will substantially impair or affect performance (ADCA 2004). Webb and Festa (1994) also note that the link between drug usage and on-the-job injuries is at best tenuous. Drug testing may also uncover other medical conditions or over-the-counter or prescribed drugs used by employees (such as Viagra or metabolites of morphine), which have the potential to affect the employment status or tenure of workers. This has led Wasserstrom (1978) to assert that employees have a right to ‘informational privacy’, which is complicated in Australia, given the exemption of employee records from thePrivacy Amendment(Private Sector)Act 2000(Cwlth). DesJardine and McCall (1990: 202) argue:
an employee’s right to privacy is violated whenever personal information is requested, collected, or used by an employer in a way or for a purpose that is irrelevant, to or in violation of, the contractual relationship that exists between employers and employees.
Bahls (1998: 82) notes that the internet is replete with tips on how illicit drug users can evade drug tests and detection.
Within the larger context of the employment relationship, work culture and the social environment have also been identified as critical and complex factors impacting the drug testing debate. For example, a culture of drug use, both legal and illicit, in isolated locations has been linked to different ways of life, the work environment and the physical location of work: geographical concepts of place and space (Daly & Philp 1995; Hendy 2003). As Allsop and Pidd (2001: 5) note:
In a variety of cultures, formal and informal pressures still encourage weekly after work team building and relaxation based on alcohol consumption. Sanctioned drugs such as caffeine and tobacco have been embraced in ritualised breaks in worktime.
Indeed, a study of alcohol consumption in the Pilbara mining region of the state of Western Australia (WA) found that alcohol consumption was 64% above the state level (Daly & Philp 1995). A subsequent study of alcohol consumption by Midfordet al. (1997) in mining-related worksites found that the consumption was greater than the national average. Drinking in the top risk category was on a par with the national averages, and binge drinking was found to be more prevalent and was related to shift work and isolation from family.
Aside from the explicit focus on the mining industry, a burgeoning body of re-search has focused on the link between the nature of the work and associated drug use. Issues of control, alienation and stress, linked with individuals’ perceptions of their powerlessness, have been identified as factors related to drug use in the workplace (Tices & Sonnenstuhl 1990; Seeman & Seeman 1992; Greenburg & Greenburg 1995; Ames & Grube 1999). As Midford (2001: 46) argues:
In the workplace, holding the view that drug use is a problem for the individual worker is functional from the point of view of the employers, because it avoids any exploration of how the workplace may contribute to the problem. However, to gain an understanding of workplace drug problems, one must look at a full range of factors that influence patterns of drug use.
with the right to privacy; and disruptions to industrial relations (Mansfield 2001; Norington 2004).
The ACTU position is that there must be joint development of any drug testing policy by unions and employers, particularly where the misuse of alcohol or illicit drugs are identified as workplace issues. Indeed, any policy dealing with workplace hazards and OH&S should be jointly developed and implemented. The ACTU (Mansfield 2001) policy framework focuses on the following: safety at work; full participation, and joint control, by workers and their representatives; applicability to both workers and management; addressing the causes of alcohol or illicit drug misuse in the workplace; a consultative, educative and rehabilitative approach; and the maintenance of confidentiality at all levels.
This pluralist stance adopted by the ACTU is based on the premise that the need for control and prevention measures arises only when drugs and alcohol are misused to the extent that the user cannot properly and safely carry out regular du-ties. In considering an appropriate response in a particular workplace, there must first be involvement of union representatives and, second, an examination of the broad environmental factors pertaining to the individual workplace or industry. The ACTU also argues that rehabilitation action should be undertaken during working hours or through schemes that include paid leave. As in the literature, a key issue is that the misuse of alcohol and other drugs may be symptomatic of other problems such as: hazardous work; a poor work environment; unrealistic deadlines; a lack of job satisfaction; a lack of worker participation and control; inadequate training and supervision; work culture and shift work.
This approach is supported by the work of Hagenet al. (1992) who found a link between higher alcohol consumption and work pressure, stress, lack of control and over-work. Philips (2001: 39), in summarising the work of Romanet al. (2000) on the relationship between stress at work and increased alcohol consumption, states:
Much of this increase [in stress] has been stimulated by changes in work organisation that have occurred in the second half of the twentieth century. Among the changes: jobs have become more complex; responsibility has been devolved to less senior per-sonnel; employer organisations have become larger and more global; manual labour has been mechanised; machines have become more ‘intelligent’; and continuous pro-duction schedules have disrupted daily life patterns and resulted in more people working for extended periods.
Indeed, the fatigue generated by these factors combined with increased dereg-ulation of the Australian labour market raises serious issues regarding OH&S (ACIRRT 1999). As Nolan (2000: 2) argues:
Employees and unions have questioned why random drug testing has assumed such priority in an industrial climate where increasing demands have been placed upon workers to work twelve-hour shifts. Evidence suggests that it is fatigue and not im-pairment through drug and alcohol abuse that leads to the majority of accidents.
and management systems (Mansfield 2001). This broadens the drug testing debate and raises the critical issue of fitness for duty.
HOLISTIC APPROACHES AND FITNESS FOR DUTY
The issue of fitness for duty often raises a more subtle and complex issue: control in the workplace. Unions tend to see the introduction of measures such as drug testing as management exercising increased control under the guise of managerial prerogative and as a strategy to marginalise the countervailing power of unions, particularly where there is an absence of consultation. This was certainly em-phasised as a key theme in the implementation of drug testing in a case study of South Blackwater Coal (Holland & Wickham 2001). Webb and Festa (1994: 101) observe that
On a broader scale, the notion of testing programs, especially if introduced unilaterally and without reference to or consultation with employees and their representative bodies, is philosophically at variance with labour relations in Australia.
Increasingly, this perspective has come under challenge with the emergence of human resource management underpinned by a unitarist philosophy. This clash of perspectives can potentially become an important source of conflict between management and unions. The need to strike a balance between the employer’s legal obligation and employees’ rights is a complex and sensitive issue pervading the development and implementation of drug testing policies.
Similarly, Nolan (2000: 63) points out that legal obligations that are too dog-matically defined can clash with industrial relations. It is perhaps the impracticality of a dogmatic approach that is leading to the development of a broader concept of fitness for duty. Although this concept is most prevalent in the mining indus-try, where fitness for duty is embodied in regulations made pursuant to OH&S legislation, it is also appearing in industries such as road and public transport. Tra-ditionally, the concept of fitness for duty meant little more than pre-employment screening of employees to determine their capacity to meet the requirements of the job. More recently, as explained above, fitness for duty is often manifest in testing regimens designed to detect impaired capacity to carry out the duties of a position. Such approaches have often proved controversial because of the pro-cess by which regimens are implemented and deficiencies in the tests themselves (Holland & Wickham 2001).
The need for a more holistic and pragmatic approach has led to advocacy of a non-discriminatory testing regimen for a wide range of physical and psychological factors, which may impair performance (Nolan & Nomchong 2001). Although the search for appropriate tests remains problematic, the philosophical underpinning of this approach is that the causes of impairment are not confined to circumstances within the employee’s control and may be significantly affected by workplace conditions under the employer’s control.
measures, pre-implementation and post-implementation, despite the company having adopted a consultative approach. The contested nature of the develop-ment and impledevelop-mentation of drug testing in BHP raises interesting and important questions about the operation of drug and alcohol testing measures in smaller, less well resourced organisations, organisations with an adversarial approach to industrial relations, and in non-union organisations.
BHPIRON ORE MINES
Background
The Pilbara region is located 1600 km north of Perth. BHP produces approxi-mately 65 million tonnes of iron ore per annum from mines in this region. BHP Iron Ore has more than 1563 employees and 1300 contractors. The largest open cut mine is at Newman. This mine is linked to major ore processing, stockpiling and shipping facilities at Nelson Point and Finucane Island, on opposite sides of the Port Headland harbour.
On the recommendations of a coronial inquiry after a fatal drug-related ac-cident in 1994 and after several other inac-cidents, BHP sought to introduce drug and alcohol testing in 1996. After the introduction of voluntary programs, BHP attempted to implement a mandatory drug and alcohol testing program at each of its sites in the Pilbara. The introduction of mandatory testing stemmed from a recognition that BHP had a responsibility to ensure the safety of all its employees. As the manager of public affairs for BHP Iron Ore, Judith Thompson reiterated:
There’s a duty of care that spreads among the workforce and from supervisory people to the workforce. Based on that duty of care, we have developed a policy in relation to drugs and alcohol on site, which is also consistent with WA mining legislation.1 (ABC Radio National 1996)
The mandatory program proposed by BHP required employees to submit to random drug testing as a condition of employment. If the result was positive, the employee was liable to be sent home on paid special leave on the first occasion. On a second occasion within a period of 2 years, the employee was liable to be sent home on unpaid special leave. On the third occasion in which a positive result was recorded within the same time period, the employee’s continuing employment would be the subject of discussions with the company (BHP Iron Ore Pty Ltd v. Construction, Mining Energy Timberyards, Sawmills and Woodworkers Union West Australian(WA)Branch, West Australian Industrial Relations Commission(WAIRC) 130, 19 June (1998)) [WAIRC 130, 19 June 1998]. Education was a central part of the program, and there was provision for assistance to the employees with a suspected alcohol or drug dependency. As Thompson explained:
The policy includes education about the effects of drug and alcohol abuse and also offers counselling to people should they have trouble controlling their use of these substances. (ABC Radio National, 18 March 1996)
Issues preceding the dispute
implementation of the program. The unions held separate meetings of their mem-bers. A valid majority of employees approved the implementation of the program, with the exception of one union: the West Australian branch of the Construction, Mining, Timberyards, Sawmills and Woodworkers Union. Their members at the Newman and Finucane Island mines voted overwhelmingly to reject the program. Despite the lengthy negotiations with employees and the four unions, BHP did not implement mandatory testing because it was regarded as impracticable to ap-ply the program to only part of the workforce. In addition, the three unions that supported the program did so on the proviso that it applied in isolation to all employees (WAIRC 130, 19 June [1998]).
The main objection of the dissenting union was to drug testing. The union was initially opposed to both alcohol and drug testing, but by the time the case reached the West Australian Industrial Relations Commission (WAIRC), the union no longer objected to alcohol testing. Drug testing was argued to be an unreason-able intrusion of an individual’s privacy. The union also objected to employees using prescribed or over-the-counter drugs that might impair their work per-formance, being required to report this to the company, and to the company maintaining records of this drug use for a minimum of 2 years (WAIRC 130, 19 June [1998]).
The dispute
The dispute over the introduction and implementation of drug testing at three BHP sites was referred to the WAIRC by BHP after 2 years of consultation. The Commission was asked to consider the program as a whole; specifically, whether it was fair and reasonable.
The dissenting union put forward three key arguments against the program. First, it questioned the prevalence of drug use in the workplace and argued that there was no evidence to justify the introduction of a testing program. For example, although voluntary drug testing was in force at BHP sites during 1997–1998, there were no reported incidents. Second, the union questioned urine testing as a reliable indicator of impairment resulting from drug abuse. Finally, it was argued that BHP should not impose the program on members simply because they had obtained the consent of a majority of the members of the other unions (WAIRC 130, 19 June [1998]).
regarding the implementation and implications of the program (WAIRC 130, 19 June [1998]).
Both parties used expert witnesses to debate the extent to which drugs adversely affected safety in the workplace. The union argued that very little was known about the impact of drugs on workplace safety and that some drugs could have positive effects. Although accepting that little was known about the effect of drugs, BHP argued that the effects of drugs on cognitive functions, psychomotor performance and other skilled tasks strongly predicted serious adverse effects on workplace safety (WAIRC 130, 19 June [1998]).
Dispute resolution
On 19 June 1998, the WAIRC endorsed a requirement that BHP employees working on the three sites submit to random drug testing (Moodie 1998). On this basis, the WAIRC considered it reasonable for BHP to implement a scheme de-signed to detect, so far as possible, the level of consumption of drugs by employees and to implement procedures designed to deter the use of drugs in the workplace. The Commission ruled that the introduction of drug and alcohol testing as part of BHP’s attempt to satisfy its responsibilities to provide a safe workplace for all employees was not unreasonable, harsh or unfair (WAIRC 130, 19 June [1998]). Weighing up intrusion and privacy concerns on the one hand with the legal obligation to provide a safe workplace on the other, the Commission concluded that, although the program constituted an invasion of individual privacy, work-place health and safety requirements and community expectations were such that there would necessarily be some constraint on the civil liberties of employees. In addition, the program included elements aimed at minimising intrusions of privacy; for example, urine samples were to be provided in private and would not be witnessed by the tester (WAIRC 130, 19 June [1998]).
In making its decision, the WAIRC upheld several elements of the program as important. These included the provision for formal education, counselling and rehabilitation. The fact that the penal elements of the program were subordinated to education and rehabilitation were also important in the WAIRC’s assessment. For example, the program provided that after 2 years any positive reading would be expunged from an employee’s record. Another important feature of the program was that the cut-off levels set for a positive test were significantly higher than the Australian standard, distinguishing the program from many others. In this sense, the tests were regarded as rigorous with experts identifying the probability for error as less than 1% (WAIRC 130, 19 June [1998]).
In summary, the WAIRC found insufficient merit for the union’s objection to the program, and endorsed BHP’s extensive consultation with the workforce on the dynamics of the program. The WAIRC’s endorsement of the program also emphasised the importance of a formal review mechanism as new, more efficient and effective drug and alcohol testing methods became available (WAIRC 130, 19 June [1998]).
DISCUSSION
relationship between drug/alcohol use, accidents, costs and work-related factors; the inaccuracy of drug and alcohol testing measures; fitness for duty and contrac-tual obligations related to employee performance; and the right to privacy. The BHP case study bears out four of the five issues. First, while OH&S and legal obligations were used as the principal justification underpinning the introduction of random drug testing at the three BHP mine sites, the issues of trust, control and surveillance were important in the Construction, Mining, Timberyards, Sawmills and Woodworkers Union resistance to the program. To support this position, they pointed to the fact that in the period 1997–1998 when voluntary drug test-ing was in place no incidents were reported, inferrtest-ing a safe and responsible work culture. Second, the informational privacy of employees was a key concern, par-ticularly in relation to prescription medication, illustrating the argument that the collection of generic medical information about an employee is not relevant to the employment contract and can infringe employees’ perceived rights to privacy. On this point, the Commission did conclude that the program constituted an invasion of privacy and the civil liberties of employees, yet, the length BHP had gone to minimise this intrusion was significant and therefore a persuasive factor in the final decision.
There is broad agreement in the literature that workplace drug and alcohol testing programs should be jointly developed through a consultative approach with employees and unions (Mansfield 2001; Nolan 2000; Nolan & Nomchong 2001; Webb & Festa 1994; Miletic 2004). Such an approach is held to be part of a holistic approach to OH&S, where education and rehabilitation are defin-ing characteristics of the program. In the BHP case study, it was clear that in the implementation of the program, a holistic and consultative approach was taken, and test levels which were deemed to reflect impairment consistent with a fitness for duty approach were also used. These were significant in the Commis-sion’s endorsement of BHP’s random drug testing program as fair and reasonable. This is also consistent with the pluralist stance endorsed by the ACTU on the successful development of drug testing programs. Nolan (2000) has argued that without this approach, a unilateral drug testing policy that places an employee in a position that could jeopardise their employment is coercive and therefore unacceptable.
The issues of fitness for duty and joint program development were both clearly illustrated in the case study, indicating that for sensitive and contentious issues such as drug testing to be handled successfully, employee and union acceptance is critical. Although alcohol and illicit substance abuse in the workplace may be viewed in the context of an employer providing a safe workplace, the issues are not necessarily clear cut, and should be examined under a broader interpre-tation of workplace OH&S that incorporates fitness for duty and work-related considerations.
the first section of the paper, empirical research supports the link between em-ployee education and assistance and the reduction and prevention of drug abuse (Desjardine & Duska 1997; Oliver 1994). A drug testing policy that is not linked to a well established rehabilitation program is likely to result in the removal of the employee from the workplace, but not the illicit drug use that may enter the work-place with a rework-placement employee. Thus, it is likely to attack the symptoms of drug use and/or abuse, rather than addressing their underlying causes. Provision for education and rehabilitation in the implementation of a drug testing program reflects a holistic approach to understanding and managing the issue of substance abuse in the workplace, whereby the parties work together to maximise employee well-being. Moreover, such an approach is more likely to be in the long-term interest of employers, as it entails identifying the underlying dysfunctions in the workplace and its operation.
CONCLUSION
The issues surrounding the development and implementation of drug and alco-hol testing in the workplace are complex and contentious. From an employer perspective, a common law duty of care, OH&S obligations and a link between drug/alcohol use and accidents at work, provide compelling reasons for the in-troduction of such measures. From an employee perspective, the right to privacy, fitness for duty and workplace culture are fundamental considerations in the de-velopment and implementation of drug and alcohol testing programs. Despite these complex and contentious issues, there is a broader agreement in the litera-ture that the development and implementation of drug and alcohol testing must be part of a holistic approach to OH&S at the workplace (Mansfield 2001; Nolan 2000; Nolan & Nomchong 2001; Webb & Festa 1994; Miletic 2004). This nec-essarily involves a consultative approach, whereby employers and unions work together to develop an appropriate program for a given workplace, and education and rehabilitation are cornerstones of that program.
The BHP case study illustrates the contentious nature of drug testing in Australian workplaces, in a situation where employer was found to be undertak-ing a ‘best practice’ approach to the issue. The problems, issues and complexity surrounding the development and implementation of drug testing policies in the workplace, even where significant resources are invested in achieving an outcome suitable to all parties, remain fraught with difficulties. In upholding BHP’s posi-tion to implement a drug testing program, the courts reinforced the importance of due process and consultation where drug testing is part of a wider occupational health and safety approach.
ENDNOTE
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