By Charlotte Hatlauf-Coles, solictor, Kensington Swan
The recent Employment Court decision in the case of Maritime Union of New Zealand Inc v TLNZ Ltd, has confirmed the principles relating to drug and alcohol policies that were previously set out by the same court in 2004 in NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air NZ Ltd.
In light of the recent decision in the TLNZ case, it is worth revisiting the decision in the Air New Zealand case, which remains the leading decision relating to drug and alcohol polices.
In this case, the union applied to the court for a permanent injunction and declarations preventing Air New Zealand to implement aspects of its new policy on drug and alcohol testing.
Air New Zealand’s policy provided for testing for alcohol though breath testing and, in the case of drugs, through urine testing. It sought to administer the tests when existing employees transfered to safety sensitive positions; after an accident, incident, or near miss; and where actions, appearance, behaviour or conduct suggested drugs and alcohol may be impacting on an employee’s work. It also wanted to conduct random testing in safety sensitive areas of work and random drug testing of all its employees.
The union argued that the introduction of Air New Zealand’s policy constituted a unilateral variation of the collective and individual employment agreements. It further asserted that the policy mislead, or was likely to mislead employees. Lastly, the union submitted that the requirement under the policy to provide bodily samples was unreasonable and unlawful because it was in breach of the New Zealand Bill of Rights Act, the Privacy Act and the Human Rights Act.
Air New Zealand denied all of the union’s claims and asserted that its policy was lawful and reasonable because, as an employer, it had the duty under the Health and Safety in Employment Act to take all reasonable steps to ensure that the workplace was free from hazards, which included taking all reasonable steps to prevent accidents and hazards caused by drug and alcohol abuse.
The court held that the proposed policy was not a unilateral variation of the employment agreements and that Air New Zealand was entitled to issue a drug and alcohol policy, outside the employment agreements, in relation to its right to manage its duty to provide a safe workplace.
The court further held that Air New Zealand’s policy was not misleading because, although controversial, the company had been open with its employees about the content and ramifications of the policy.
Most importantly, the court held that the policy was reasonable and lawful. The only exception was with regard to random drug and alcohol testing of employees who were engaged in non-sensitive roles and, accordingly, the court held that the policy was invalid in that regard.
In reaching its decision the court applied a balancing exercise between an employee’s right to privacy against an employer’s health and safety obligations. The court stated:
“We have already agreed that a balancing exercise is called for and that it involves a judgment on matters of fact and degree. In our judgment, the balance is to be stuck at the point at which the testing can objectively be said to have a sufficiently proximate connection between the impairment of employees by means of the consumption of alcohol or specified drugs or both, and operational safety. We hold that the necessary connection is capable of existing:
- on reasonable cause to suspect that an employee’s behaviour is an actual or potential cause or source of harm to others as a result of being affected by alcohol or drugs or both;
- on internal transfer to safety sensitive occupations;
- in post-accident/incident or near miss situations;
- in random testing in safety sensitive areas only, not across the board.”
It is interesting to note that the court did not attempt to define what constitutes a safety sensitive area or role but asserted that definition of such was the employer’s responsibility, in consultation with the affected employees and on an objectively verifiable basis.
The court’s recent decision in the TLNZ case confirmed the following principles established by the Air New Zealand case:
- Where a drug and alcohol policy is not expressly addressed in an employment agreement it may be the subject of a fair and reasonable employer policy;
- Consultation principles will apply to the formulation and dissemination of a drug and alcohol policy;
- A direction to an employee pursuant to a drug and alcohol policy must be both lawful and reasonable;
- Alcoholism and drug dependency are disabilities covered by the Human Rights Act 1993 and in respect of which it will be unlawful for an employer to treat an employee qualified for work of any description less favourably than other employees of similar capabilities by reason of such disability; however, temporary impairment by reason of drug or alcohol consumption will general not constitute a disability;
- The Privacy Act 1993 provides useful guidelines in determining the reasonableness of a drug and alcohol, policy in relation to privacy issues;
- The Health and Safety in Employment Act 1992 imposes a duty on an employer to take all practicable steps to eliminate significant hazards to employees.
- Accordingly, it is reasonable for an employer to discharge those duties by means including the testing for drugs and alcohol in the workplace;
- Work in safety sensitive areas will also affect the reasonableness of a drug and alcohol testing regime.
- This article is not a substitute for independent legal advice.
Contractor Vol.32 No.2 March 2008
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