Upper Hunter lets the dogs out - depaNews February 2011

Upper Hunter lets the dogs out

Sometimes things just slip under your guard. Even though we hadn't been consulted when Upper Hunter Shire Council introduced its drug and alcohol policy a few years ago, nor when they reviewed it last year, we knew there was some extremism at play. Without having seen the policy, we thought the extremism was the introduction of random drug and alcohol testing - something we don't like because it fails to properly target workplace risk and too often can pick up employees who are working well and enthusiastically and not doing anything wrong or creating risk.

(And it's hard not to make the aside, because often we see councils that take ages to do the simplest of tasks, many think this is an industry crying out for some performance enhancement.)

depa has had a policy for years that we are opposed to random drug and alcohol testing and, after we filed disputes with Hornsby, Sutherland and Wollongong about policy issues generally, we were pleased when the USU took up the challenge. As a result, through 2009 and 2010 the three local government unions and the Local Government Association and Shires Association developed Industry Guidelines, agreed by the peak employers organizations and the three local government unions in an admirable consensus, for the guidance of the industry.

The Guidelines in their final draft form were concluded last year with the intention that there would be a trial roll-out with a sample of councils. Caught up in negotiation of the 2010 Award, the timetable slipped and the roll-out will occur this year.

The value of the Industry Guidelines is that they discourage random testing and encourage saliva testing as the preferred method for post-incident or reasonable suspicion testing.

The attractiveness of saliva testing is that this is the preferred method used by the NSW Police on the roads because it picks up recent drug use and not something you may have done socially two weeks earlier. Urine testing opens a window going back a number of weeks, fails to distinguish between something you did on the weekend or your holidays and something you may have done before you came to work. It is an ineffective predictor of workplace impairment.

And the Australian Industrial Relations Commission in a major test case preferred saliva testing precisely for these reasons.

But if you want to know what people do when they're not working for you, because you are nosy, have no respect for people's privacy, are unhealthily and pruriently interested in other people's private lives, are some sort of degenerate or anti-drug zealot and want to know what your employees have been doing recreationally, or on holidays even, then you test their urine.

Which is exactly what Upper Hunter does.

They also claim to have the right to incorporate drug and alcohol testing using a urine test in pre-employment screening. We don't believe there is a common law right for employers to do this (and are seeking advice) but even if they make it voluntary, testing provides information on personal behaviour and medication which is none of the business of a potential employer. How can that be a consideration in an appointment required by the Local Government Act to be based solely on merit?

In the last two weeks we filed two industrial disputes about drug and alcohol policies. The first (IRC133/2011) was listed before Deputy President Grayson on 18 February and was filed to seek the Commission's assistance to oversee the roll-out of the trial of the Industry Guidelines and assist the parties review them. On that day, the Commission issued a Statement supporting the Industry Guidelines, commending the parties on their initiative to assist councils in observing their obligations under the Op of occupational Health and Safety Act to maintain a healthy and safe workplace.

In particular, the Commission chose to make an observation supporting the decision of the parties to encourage saliva testing rather than any other testing method because that method detects "recent use as this is likely to be more reliable in detecting whether an employee is unfit for work and avoiding DNA testing methods that unreasonably intrude upon the private/personal affairs of employees."

The second (IRC155/2011) was listed on 23 February and was filed to target councils in the Hunter Region which were appearing to reject the Industry Guidelines and develop something more offensive and intrusive - in fact something that did, in the words of the Commission, "unreasonably intrude upon the private/personal affairs of employees".

This dispute was filed with 11 councils which had individually failed to respond to a letter from us asking that they hold off on developing any policy until the Industry Guidelines were rolled out. After the notification, we removed Lake Macquarie because they were happy with a policy they had negotiated with the unions years ago.

But it was in preparing for the second dispute that we discovered the full horror of the Upper Hunter policy.

On 23 February the Commission recommended that the Hunter Councils consider holding off on the development of their own policy until the Industry Guidelines were rolled out in the trial and that they also, if they are genuinely enthusiastic about this issue, volunteer their councils to participate in the trial. The parties to the Industry Guidelines would be quite happy to have the entire trial run with a sample of Hunter Councils.

The recommendation made excluded Upper Hunter - which made it abundantly clear that they had no interest in opening their mind to the Industry Guidelines. Well, not yet.

We reject the view expressed by Upper Hunter that the system was introduced consultatively and with the support of the workforce and the unions. And how do individual employees say no at a local level face-to-face with the anti-drugs zealotry of management? That would be, as Sir Humphrey famously observes, a courageous decision.

While this Council argues that this is how it operates in the mines, and they are surrounded by them, since when does a proximity to someone else's risk mean that you share it? Maybe they think it's like passive smoking.

We hope the Hunter Councils (excluding Upper Hunter) positively respond to the Commission's recommendation and invitation to participate in the trial and we can get the trial operating and review the Guidelines comfortably this year.

We will be dealing with Upper Hunter separately. Shortly they are to advertise the position of Director of Environmental Services. They have an obligation under the Local Government Act to make this appointment based on merit but regardless of how good a candidate you may be, you could be struck out in a pre-employment medical by considerations that have absolutely no bearing on your merit as a candidate or your ability to do the job. If you do apply, and they send you for a pre-employment medical, make sure you have been living like a yogi for the three weeks before the medical. And then refuse any random test after you are appointed and we will back you up.

(As another aside, our delegate at Upper Hunter has been “random” tested five times in the last 18 months. All negative, of course, but at a considerable cost of the Council and with ratepayers money not targeting immediate risk or dealing with it in proportion to that risk.)