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Employment Law – Drug Testing

Background

Finding in favour of the employer, the Fair Work Commission in M v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal dismissed the application of an employee who refused to supply a sample for a drug test.

Facts

In essence:

  • in February 2016, an employee at a coal mine was selected for a drug and alcohol test at the commencement of his shift
  • the tester found the first urine sample to be hotter than expected and the sample strip failed to record the temperature as it would’ve exceeded 38 degrees although the employee’s ear temperature was 36.4 degrees
  • as soon as the first urine sample cooled to 38 degrees, it was tested but did not provide a reading
  • according to the employer’s procedure, the first urine sample should have been discarded as it was too hot
  • the tester asked the employee for a second urine sample and asked whether or not there were any symptoms that could increase the temperature of the urine to which the employee denied
  • the second sample was 34 degrees and was quite turbid and cloudy similar to the first and also tested negative for drugs
  • the manager was contacted due to suspicions the sample was provided by another person and a third sample was requested
  • the employee initially agreed but became agitated and argumentative and refused knowing that refusal would be a breach of the employer’s drug and alcohol procedure
  • the employee was stood down and returned to work on 29 April 2016
  • on 30 June 2016 the employee was issued a final written warning regarding his refusal to provide the third urine sample
  • the employee applied to the Fair Work Commission to resolve the dispute in accordance with his employment contract and s739 of the Fair Work Act

Decision

The Fair Work Commission:

  • was satisfied the employer had a reasonable basis to request a further drug test ‘for cause’
  • this cause being to protect other employees from the risk of harm
  • confirmed the tester failed to adhere to the required drug testing procedure for the first sample and the second sample but did this not give rise to a right of the worker to refuse further testing
  • found it was not unreasonable for the employer to issue a final written warning
  • found it was not unreasonable for the employer to conduct further testing on the employee

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • consider this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • prepare a clear drug and alcohol testing employment law policy in compliance with employment laws (which an employment lawyer can advise on)
  • consider the need for the drug and alcohol testing employment law policy to meet the requirements of the relevant Australian Standard for drug and alcohol testing in the workplace (which an employment lawyer can advise on)
  • consider how the drug and alcohol testing employment law policy interacts with other employment law policies (such as work health and safety)
  • prepare or update new employment contracts inclusive of a drug and alcohol testing clause (which an employment lawyer can advise on)
  • train staff about the drug and alcohol testing employment law policy
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • understand what employment laws apply at your workplace including Awards and enterprise agreements and whether they contain clauses relating to drug and alcohol testing (which an employment lawyer can advise
  • review your employment contracts and employment law policies at least once every 12 months to ensure they remain current with workplace practices and all employment laws

For More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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FWO flags review of abandonment clauses in Awards

The Fair Work Commission has indicated that it will conduct a review of abandonment clauses contained in six modern awards, following the decision of the Full Bench of the Fair Work Commission in Benias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38.

In the decision, the Full Bench overturned the decision of Senior Deputy President O’Callaghan ([2016] FWC 6624), who dismissed an employee’s unfair dismissal claim on the basis that the termination was not at the initiative of the employer.

The facts

Section 386 of the Fair Work Act 2009 defines a dismissal as a termination of employment ‘on the employer’s initiative’. The Act provides that where an employee’s employment is not terminated on the employer’s initiative (i.e. a voluntary resignation), that employee is unable to pursue a remedy for Unfair Dismissal. [...]  READ MORE →

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Fair Work Commission – Penalty Rates Decision

Background

The:

  • four-yearly review of employment law modern awards has been conducted by the Full Bench of the Fair Work Commission
  • Fair Work Commission received over 5,900 submissions, and heard from 143 lay and expert witnesses over 39 days of hearing throughout 2015 and 2016
  • purpose of the review was to ensure that the modern awards continue to achieve their objective to provide ‘a fair and relevant minimum safety net’ and, of course, remain consistent with relevant workplace laws

Rationale for Penalty Rates

With respect to penalty rates:

  • the original rationale for penalty rates was to compensate employees for working outside ‘normal hours’ and to deter employers from scheduling work outside these hours
  • however, this rationale has shifted in more modern times and the Fair Work Commission has concluded that deterrence is no longer an objective of the modern awards in relation to weekend and holiday penalty rates
  • this means the primary objective of the modern awards is now compensation of employees
  • the hospitality and retail sectors made applications to vary (and ultimately reduce) the penalty rate provisions in relation to weekend and public holiday rates
  • employers have been pushing for these changes, with many asserting that they have had to reduce labour costs on Sundays and public holidays by restricting trading hours and limiting staff levels, leading to restrictions on the type and range of services provided

Affected Awards

The employment law decision of the Fair Work Commission relates only to businesses under the following modern awards:

  • Fast Food Industry Award 2010 (Fast Food Award)
  • General Retail Industry Award 2010 (Retail Award)
  • Hospitality Industry (General) Award 2010 (Hospitality Award)
  • Pharmacy Industry Award 2010 (Pharmacy Award)
  • Registered and Licensed Clubs Award 2010 (Clubs Award)
  • Restaurant Industry Award 2010 (Restaurant Award)

Weekend Rates

In respect of the weekend rates aspect of the Fair Work Commission decision:

  • they reviewed Saturday rates for the Fast Food, Hospitality, Restaurant, and Retail Awards and were satisfied that the rates achieved the modern award’s objective and did provide a fair and minimum safety net
  • the Clubs and Pharmacy Awards are subject to further consideration in this regard
  • in relation to Sunday rates, the Fair Work Commission decided that the Fast Food, Hospitality, Retail and Pharmacy Awards did not provide a fair and relevant minimum safety net consistent with workplace law
  • except for the Fast Food Award, Sunday rates for these awards were not simply reduced to Saturday rates
  • it was recognised that there remains a higher level of disutility in working Sundays rather than Saturdays, although the extent of that disutility is much less than in times past and hence some reduction is warranted
  • for the Fast Food Award, Sunday rates were levelled with Saturday rates for casual, part-time and full-time employees but career employees went unscathed
  • the Fair Work Commission has expressed a provisional view that the reductions should take place with a series of annual adjustments on 1 July each year (starting 1 July 2017) in conjunction with any increases to modern award minimum wages from Annual Wage Review decisions
  • casual employees can rest at ease knowing that their applicable rates will (currently) remain an extra 25% over other employees

Early/Late Loading rates

In respect of the early/late loading rates aspect of the Fair Work Commission decision:

  • some provisions concerning early morning/late night work were changed in the Restaurant and Fast Food Awards, winding back the clock from 7am to 6am as most cafes open at that time in capital cities
  • work performed between midnight and 6am will attract a 15% additional payment
  • these employment law changes will be in effect as of late March 2017
  • the Fair Work Commission was not persuaded to make changes proposed to Pharmacy Award, Clubs Award and Restaurant Award loadings

Public Holiday Rates

In respect of the public holiday rates aspect of the Fair Work Commission decision: [...]  READ MORE →