Australian Workers Union, New South Wales v BHP Steel - [2003] NSWIRComm 461 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Australian Workers Union, New South Wales v BHP Steel

[2003] NSWIRComm 461

Industrial Relations Commission (NSW)|2003-03-20|Before: Walton J, Grayson DP, Mr P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-03-20

Before

Walton J, Grayson DP, Mr P

Catchwords

06/20/2003
06/23/2003
08/14/2003
09/12/2003 DATE OF JUDGMENT: 12/18/2003

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Original judgment source is linked above.

Catchwords

06/20/200306/23/200308/14/200309/12/2003 DATE OF JUDGMENT: 12/18/2003

Judgment (62 paragraphs)

[1]

CITATION : Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 PARTIES : Australian Workers Union, New South Wales BHP Steel (AIS) Pty Limited FILE NUMBER: IRC 7045 of 2002 CORAM: Walton J Vice-President; Grayson DP; Connor C CATCHWORDS : Industrial dispute - Declaratory relief proceedings - Arbitral proceedings - Alcohol and other drugs management policy - Employer obligation to maintain safe and healthy workplace - Union opposition to testing procedure and disciplinary sanctions - Counterbalancing of various rights and interests - Safety and health in working environment - Fair and reasonable treatment in employment - Discipline in employment - Rights to privacy - Balancing of issues with various statutory and common law requirements - Joint acceptance of need to regulate drug and alcohol as between industrial parties - Desirability of recommendation at this stage - Competing contentions as to minimum detection level for cannabis - Definition of significant incident as precursor to testing - Mandatory disclosure of prescription medication or health condition likely to impair function - Compulsory Testing - Modifications to existing policy - Recommendation LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2000 BHP Iron Ore Limited v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (1998) 82 IR 162 CASES CITED : Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003) Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 HEARING DATES: 06/13/2003; 06/20/2003; 06/23/2003; 08/14/2003; 09/12/2003 DATE OF JUDGMENT: 12/18/2003

[48]

2.0 SCOPE 19.3 The AWU submitted that the inclusion in the Policy of an acknowledgment on the part of BHP that the Policy will not be used to victimise, harass or intimidate employees does no more than expressly recognise what should be presumed to be the case in any event, that is, that BHP is applying the Policy in an objective and legitimate manner. BHP contended that the existing dispute resolution procedures contained within the steelworks industrial instruments contain adequate safeguards for employees so aggrieved and give such employees the ability to pursue the resolution of disagreements through to the Commission, if necessary. In the absence of satisfactory evidence the Commission should not conclude that the Policy is not being applied in an objective and legitimate manner and any such inference is provocative and industrially inappropriate. 19.4 It is recommended that the present expressed scope of the Policy remains unaltered. 4.0 DEFINITIONS 19.5 The AWU sought the deletion of the definition of "Peer" consistently with its opposition to "challenge testing" and "peer review". We will come to those matters in due course. 19.6 The AWU further sought to define "significant incident" by reference to definitions contained within the Occupational Health and Safety Act 2000 and the associated Regulations. It is accepted by the AWU that BHP supervisors will still be invested with a discretion to require alcohol or other drug testing upon the occurrence of a significant incident but the definitional parameters of the AWU proposal will clarify and assist in the exercise of that discretion. The AWU accepted that certain of the sub-paragraphs in the proposed definition may be agreed as redundant or having no application to the BHP Port Kembla site. 19.7 BHP contended that the definition of "significant incident" proposed by the AWU, limited as it is to those incidents which fall within the statutory framework of a "notifiable non-disturbance occurrence" is more restrictive than the existing Policy; is complex and difficult to interpret in certain respects; is not capable of achieving the purpose of the Policy; is ambiguous and uncertain and robs the Policy of its present flexibility. BHP submitted that the AWU proposal, by its narrower and more prescriptive definition, may preclude the testing of an employee who had shown a clear and significant error of judgement consistent with impairment. We note in that regard, the agreed position between the parties that, notwithstanding any real or perceived restrictions, the AWU proposal would be broad enough to include incidents such as that which gave rise to earlier dispute proceedings namely, a broken wing mirror on an overhead crane. 19.8 We recommend that, subject to the removal of redundant or non-applicable sub-paragraphs, the AWU proposal be implemented and trialled for a period of twelve months at the conclusion of which, the parties will report to the Commission as to this and other aspects of the Policy.

[49]

5.0 MINIMUM ALLOWABLE LEVELS OF ALCOHOL AND OTHER DRUGS 19.9 The AWU proposal to fix the minimum detection level for cannabis at 100 ug/L adopts the standard implemented by BHP Iron Ore Limited in its drug and alcohol policy in Western Australia. That policy was the subject of proceedings before the Western Australian Industrial Relations Commission in Court Session which concluded that the policy was fair and reasonable ( BHP Iron Ore Limited v Construction, Mining, Energy, Timberyeards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (1998) 82 IR 162 at 171). 19.10 The AWU accepted that increasing the minimum detection level from 50ug/L to 100ug/L may result in a higher number of "false negative" results but argued that this was merely demonstrative of the fact that whichever cut off point is applied there will be a resultant cause and effect. In that regard, the AWU pointed to the expert evidence of Professor Christie who said: It has been established that setting a higher cut-off level introduces a risk of failure to detect very recent use (within 4-6 hours), and therefore impairment. An inevitable consequence of setting a low limit is an increase in the duration for which an individual will return a positive result after smoking cannabis and a potential increase in false positive results and later: The issue is making a decision, should I raise the cut-off level and fail to detect individuals, but detect individuals closer to their period of intoxication, or should we set a level to make sure that it detects all individuals that are intoxicated, or most individuals who have used cannabis for on average, a longer period. 19.11 Clearly, the selection of the minimum detection level for cannabis involves elements of judgment or trade off. In such a balancing exercise, the AWU submitted that the Commission can take comfort from the conclusions reached by the Western Australian Commission in the BHP Iron Ore case and further, that the workability of the 100ug/L minimum detection level for cannabis is amply demonstrated by its continuing application (albeit presently under review) in Western Australia. We note in that regard, the evidence of Professor Christie who has moved from the position he adopted in the BHP Iron Ore case in support of the 100 ug/L minimum detection level to a position based on more contemporary scientific wisdom (and the relevant Australian Standard AS/NZ 4308:2001) in favour of the 50ug/L minimum detection level presently in operation in the Port Kembla steelworks.

[51]

5.3 PRESCRIPTION MEDICATION 19.15 The AWU submitted that the mandatory disclosure of sensitive and personal information to supervisors who are not medically trained; who are under no ethical or professional obligations as to confidentiality and in circumstances where there are no protocols in place at the steelworks to protect privacy of information so disclosed, is neither fair nor just in the context of a framework for the conduct of industrial relations. Conversely, the AWU proposal provides for a regime that justly and fairly balances the rights and obligations of employees and employers on the site. 19.16 BHP relied on evidence indicating that the present measure has worked well; that there is a co-operative approach between employees and supervisors; that supervisors deal more and more with and resolve issues without the need to involve the BHP Works Occupational Physician (although we note the existing Policy specifically requires supervisors to seek advice from the Occupational Physician); that employees have consented to the sharing of information; that there have been no complaints from employees about the process; that it is unrealistic for the Occupational Physician to stand in the place of 300-400 supervisors across the site and at any time of the day or night, as the first recipient of such information and that the AWU proposal giving the primary role to the treating doctor who may not have the necessary detailed knowledge of the steelworks is unworkable. 19.17 We consider that the evidence overwhelmingly favoured the AWU position on this matter in that some modification to this aspect of the Policy is warranted. We recommend that the mandatory disclosure of information about health conditions or prescription medications be made optional by the substitution of the word "may" for the words "are required to" and that where an employee who may feel a particular sensitivity about such disclosure so chooses, he or she will be bound by the AWU proposal which can sit in the Policy as an alternative process.

[53]

6.2 TESTING PROCESSES 19.20 We make no recommendation for removal of the "challenge testing" arrangements and note that in its present form, it provides an avenue of redress for employees dissatisfied with the outcome of nominated peer/supervisor investigations. 19.21 We make no recommendation for removal from the "fitness to return to work" testing regime, of the existing provisions regarding cannabis and we note in that regard the unchallenged evidence of Professor Christie to the effect that the underlying theory in detecting re-use is that the best estimate of the half-life of cannabis metabolites in urine (the time taken for the concentration to fall by half) is three days in humans. Detection of re-use of cannabis is based on a finding of an exceptional deviation from this continuing decline over a period of days. Thus, under the existing return to work testing regime and on the above assumption that concentration levels of cannabis metabolites in urine could, absent re-use, be expected to have a half-life of three days, any person presenting for return to work testing following an initial positive cannabis test result who shows creatinine-corrected urinary concentration of cannabis metabolites that increases by more than 1.5 in subsequent specimens is assumed to have re-used during the intervening period. 19.22 On one view of those considerations, the present system of return to work testing has sufficient inherent protection against false positive results which when coupled with the assumed natural rate of dissipation of cannabis metabolites provides adequate and reasonable safeguards against unfairness or injustice. As the expert evidence indicates, the same principle can be said to apply to the "ongoing fitness for work" testing (otherwise referred to as random monthly testing) which the AWU seeks to remove. This is so because an individual cannot return to work before a negative alcohol or blood test is recorded and in such circumstances, the likelihood of a positive result being returned under a random monthly testing regime would be negligible in the absence of re-use.

[54]

7.0 FIRST AND SUBSEQUENT POSITIVE TESTS 19.23 We note in this section for clarity that the so-called "first positive test" in fact applies inter alia to employees who have tested positive previously albeit within a period not exceeding 12 months. It is appropriately described by the AWU as a form of probation which can vary as between individual employees as to duration but which cannot exceed 12 months. This is said by the AWU to be arbitrary and should be replaced by a defined period of 6 months after which, on the basis that the employee does not re-test positive, the employee's alcohol and other drugs record is expunged. 19.24 The AWU also sought to replace the word "suspended" as it presently appears in cl.7.0 of the Policy with the words "stood down". The AWU further sought to remove the employer's unfettered discretion to suspend without pay, those employees who return second and third positive tests. The only Policy guidance in determining the length of any suspension without pay is in the case of a second positive test, the employer must have regard to "the duration since the previous incident and the general behaviour and work record of the employee" and in the case of a third positive test, the length of the suspension will be "for a longer period". Additionally, the AWU sought to remove the unfettered discretion with which the employer is invested, to determine whether an employee is liable for dismissal upon there being a further occurrence (ie, a fourth positive test) "within a reasonable period". The AWU submitted that placing a three month parameter around this discretionary power is fair and just. Finally in respect of this section of the Policy the AWU sought the removal of cl.7.5 which effectively allowed the employer, on a case by case basis, to take unspecified action against an employee other than action which is set out in the Policy. 19.25 By its claim the AWU sought to expunge the record of an employee who following a first, second or third positive test, does not record a subsequent positive test within six months of the previous test.

[57]

19.30 The same observations are made in respect of the "reasonable period" within which "the employee will be liable for dismissal" and we make no recommendation for change to cl.7.4 of the Policy. We do, however, emphasise that great care should be exercised in dealing with acts of transgression as it is at least implicit from the Policy that a transgression might not necessarily relate to misbehaviour or misconduct in the sense that those terms are ordinarily understood and applied. 8.0 REFUSAL TO UINDERTAKE TEST 19.31 The AWU submitted that this clause in its existing form is liable to cause confusion and that on its face, it contains an element of double jeopardy. This arises because refusal to undertake a test on the one hand is deemed to be a positive test result with the accompanying consequences and then further or additionally, it is to be treated as a disciplinary matter in the same way as any other refusal on the part of an employee "to comply with a Company Policy or procedure". 19.32 For it's part, BHP argued that no evidence had been led pointing to elements of confusion and secondly, that this clause is clearly referrable to a first refusal (which invokes the deemed positive result) and a further refusal (which has other connotations). We would observe that the comma after the word "Further" in the second sentence of the existing clause 8.0 of the Policy lends itself to a different construction than that for which BHP contends and adds weight to the AWU contention. The comma has the effect of giving the word "Further" the same or similar meaning as the words "in addition to the foregoing". If the comma were removed, the word "Further" would be given its adjectival meaning by reference to the word following it namely, the word "refusal". We are of the view that there should be a form of disciplinary sanction available for appropriate use in cases where there is repeated refusal to undertake tests. This is particularly so when it is considered that the AWU has adopted a position in support of a testing regime per se. 19.33 For clarity, we recommend the removal of the comma after the word "Further" at the beginning of the second sentence of the existing clause 8. We otherwise make no recommendation for change to this clause. Again, however, we point to the need for considerable care to be exercised by BHP in the implementation of this aspect of the Policy particularly as to the reasons why an employee may refuse to undertake a test. A clear example of the inappropriate application of disciplinary sanctions is to be found in the decision of the Full Bench of the Western Australian Industrial Relations Commission in Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003). In that case, it was found that the employee's dismissal following a refusal to undertake a drug test was an oppressive exercise of the employer's right to dismiss and it seems to us that the case stands as others may also, as a clear statement of the need to approach the use of disciplinary sanctions within the context of the Policy with due care and caution. 19.34 Finally, we recommend that the Policy may be reviewed in 12 months upon the application to that effect.

Australian Workers Union, New South Wales v BHP Steel

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Judgment (62 paragraphs)

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