28Drug and alcohol management program

#### 28 Drug and alcohol management program 28 Drug and alcohol management program > > (1) For the purposes of section 115 (*Drug and alcohol management program*) of the Law, a drug and alcohol management program of a rail transport operator must include the following— > > > > > (a) a drug and alcohol policy that sets out the objectives of the rail transport operator with respect to drug and alcohol management in the workplace; > > > > > (b) systems and procedures for the provision of information and education to rail safety workers in relation to the drug and alcohol management program; > > > > > (c) systems and procedures to ensure the confidentiality of personal information obtained from, or in respect of, a rail safety worker in relation to drug or alcohol testing, counselling, treatment or rehabilitation; > > > > > (d) details of the drug and alcohol testing regime, including testing procedures and procedures for the management of rail safety workers in respect of the results of such testing and systems and procedures in relation to the response of the rail transport operator to an incident of a kind specified in subregulation (1b) or a prescribed incident (as the case requires); > > > > > (e) measures in accordance with subregulation (6). > > > (1a) For the purposes of subregulation (1)(d), the drug and alcohol testing regime of a rail transport operator required to be accredited in respect of railway operations carried out outside New South Wales must include a requirement that if a rail safety worker is involved, or is reasonably suspected of having been involved, in an incident of a kind specified in subregulation (1b) while carrying out rail safety work outside New South Wales in respect of the operator’s railway operations, the operator must require the worker to undergo drug and alcohol testing, in accordance with the requirements of the operator’s drug and alcohol management program, unless— > > > > > (a) the drug and alcohol testing has been conducted by a police officer or the Regulator; or > > > > > (b) the operator is notified by the Regulator that the drug or alcohol testing is not required; or > > > > > (c) there is a reasonable excuse for not doing so. > > > (1b) For the purposes of subregulation (1a), an incident of the following kind is specified— > > > > > (a) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 1, other than an incident that involves self-harm or suspected self-harm; > > > > > (b) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 2; > > > > > (c) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 4; > > > > > (d) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 5; > > > > > (e) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 7; > > > > > (f) a Category A notifiable occurrence specified in Schedule 1A Part 1 clause 13. > > > (2) For the purposes of subregulation (1)(d), the drug and alcohol testing regime of a rail transport operator required to be accredited in respect of railway operations carried out within New South Wales must include the following— > > > > > (a) in relation to drug and alcohol testing— > > > > > > > (i) in each year on a random basis using risk management principles to select rail safety workers (being not less than 25% of all rail safety workers carrying out rail safety work within New South Wales in relation to the operator’s railway operations), the operator must require the workers to submit to a preliminary breath test, a breath analysis or a test for the presence of a drug; and > > > > > > > (ii) if a rail safety worker is involved, or is reasonably suspected of having been involved, in a prescribed incident while carrying out rail safety work within New South Wales in respect of the operator’s railway operations, the operator must, unless there is a reasonable excuse for not doing so, require the worker to undergo, within 3 hours immediately after the incident, drug and alcohol testing; and > > > > > > > (iii) that testing referred to in either of the preceding subparagraphs must be carried out by an authorised person engaged by the operator for that purpose; > > > > > (b) that the operator must notify the Regulator, within 7 days, or such longer period as may be specified by the Regulator, and in a form approved by the Regulator, of— > > > > > > > (i) an analysis of blood confirming the presence of a drug in the blood of a rail safety worker; and > > > > > > > (ii) an analysis of blood confirming that the prescribed concentration of alcohol is present in the rail safety worker’s blood; and > > > > > > > (iii) an analysis of urine confirming the presence of a drug in the urine of a rail safety worker; and > > > > > > > (iiia) an oral fluid analysis confirming the presence of a drug in the oral fluid of a rail safety worker; and > > > > > > > (iv) a breath test indicating that the prescribed concentration of alcohol is present in a rail safety worker’s breath or blood; and > > > > > > > (v) a breath analysis confirming that the prescribed concentration of alcohol is present in a rail safety worker’s breath or blood; and > > > > > > > (vi) any rail safety worker who, when required to do so under the drug and alcohol management program of the operator, fails to undergo a breath test, undergo a breath analysis, or provide a sample of blood, urine or oral fluid; and > > > > > > > (vii) any incident or suspected incident involving the interference or tampering with, or the destruction of, a sample of a person’s blood, urine or oral fluid provided or taken under the drug and alcohol management program of the operator in contravention of that program; and > > > > > > > (viii) any incident or suspected incident involving something being done in contravention of the drug and alcohol management program of the operator to introduce, or alter the concentration of, alcohol or any other drug in a rail safety worker’s breath, blood, urine or oral fluid before the worker submitted to a breath analysis or oral fluid analysis or provided a sample of blood or urine under that program. > > > (3) Subregulation (2)(a)(i) does not apply to the railway operations of a rail transport operator insofar as those operations relate to the operation of a heritage railway. > > > (4) Subregulations (1a) and (2)(a)(ii) place an evidential burden on the accused to show a reasonable excuse. > > > (5) The drug and alcohol management program of a rail transport operator must provide for the following measures to be taken by or on behalf of the operator— > > > > > (a) the establishment of rules relating to the use of drugs and alcohol by rail safety workers (including prohibitions and restrictions on use); > > > > > (b) the identification of rail safety workers who have alcohol or other drug related problems and, where appropriate, referral of those workers to assessment, treatment, counselling or rehabilitation. > > > (6) The drug and alcohol management program of a rail transport operator must set out the obligations of rail safety workers with respect to the management of alcohol and other drug use and the actions that may be taken by the operator if there is a breach of those obligations, including the following— > > > > > (a) a requirement that a rail safety worker notify the operator, or a nominated person, if the worker is aware that the ability of the worker, or another worker, to carry out rail safety work may be impaired by alcohol or any other drug; > > > > > (b) the provision of education and rehabilitation measures for rail safety workers, including provision for information to be provided about referral to counselling, treatment and rehabilitation services where appropriate; > > > > > (c) the provision of information to rail safety workers about their responsibilities and obligations in relation to alcohol and other drug use under an application Act of a participating jurisdiction and the Law; > > > > > (d) the provision of information to rail safety workers with respect to the effect of alcohol and other drugs and the possible disciplinary action and other penalties that may apply if a rail safety worker fails to comply with the drug and alcohol management program; > > > > > (e) appeals and grievance mechanisms for dealing with complaints about the application of disciplinary action and other penalties, or the implementation of the drug and alcohol management program; > > > > > (f) protocols for fair procedures relating to the operation of the drug and alcohol management program. > > > (7) For the purposes of this regulation— > > > > heritage railway means a railway operation principally involving the restoration, preservation or operation of vintage rolling stock; > > > > prescribed incident, in relation to a rail transport operator required to be accredited in respect of railway operations carried out within New South Wales, means any of the following that occurs on railway premises (being premises used in connection with the carrying out of railway operations by the operator in New South Wales)— > > > > > (a) a collision between rolling stock; > > > > > (b) a collision between rolling stock and a person; > > > > > (c) a collision between rolling stock and a road vehicle or plant equipment; > > > > > (d) the derailment of rolling stock; > > > > > (e) a breach of the rail infrastructure manager’s network rules; > > > > > (f) any other incident that the Regulator may, by notice in writing to a rail transport operator, declare to be a type of prescribed incident in respect of the operator’s railway operations. > > **Reg 28:** Am 2019 (263), reg 5 (1)–(4); 2022 (269), reg 6(1)–(6); 2024 (639), reg 4(1)–(5).