For organisations operating under enterprise bargaining agreements (EBAs) or modern awards, the introduction and administration of a drug and alcohol testing program involves an additional layer of complexity. Union consultation obligations, dispute resolution mechanisms, and specific testing provisions within the industrial instrument must all be navigated carefully.

Failure to comply with these requirements does not merely create an industrial relations problem — it can undermine the legal enforceability of the entire testing program. This article examines the key considerations for employers operating within a unionised or award-covered workforce.

Common EBA Drug and Alcohol Testing Provisions

Enterprise agreements vary significantly in how they address drug and alcohol testing. Some contain detailed, prescriptive clauses, while others are silent on the topic or contain only general references. Understanding what your specific agreement provides is the essential starting point.

Typical Provisions

• Testing types permitted — the agreement may specify which types of testing are permitted (for example, post-incident and for-cause only) and may exclude others (such as random testing). If your agreement does not permit random testing, implementing it unilaterally may constitute a breach of the agreement.
• Testing methodology — some agreements specify the testing method (urine or oral fluid), the Australian Standards to be applied, and the cut-off levels for each substance. Deviating from these specifications, even to adopt a more accurate method, may require variation of the agreement.
• Consequences for positive results — the agreement may prescribe a specific process for managing positive results, including counselling, rehabilitation, and progressive discipline. Employers cannot impose harsher consequences than the agreement provides.
• Refusal provisions — how refusals are treated may be defined in the agreement, including whether refusal is treated as a deemed positive result.
• Support and rehabilitation — many EBAs require the employer to offer rehabilitation and support before disciplinary action, particularly for a first positive result.

Consultation Obligations

Most enterprise agreements contain consultation clauses that require the employer to consult with employees and their representatives before introducing or significantly changing workplace policies. Drug and alcohol testing programs typically fall within the scope of these clauses.

What Genuine Consultation Requires

• Notice — the employer must provide written notice of the proposed change with sufficient detail for employees and their representatives to understand what is being proposed.
• Opportunity to respond — employees and their representatives must be given a reasonable opportunity to express their views and raise concerns.
• Genuine consideration — the employer must genuinely consider the views expressed. Consultation that is conducted as a formality, with the outcome predetermined, does not satisfy the obligation.
• Response — the employer should communicate its response to the issues raised, including whether and how the proposal has been modified as a result of consultation.

Critically, consultation does not mean agreement. The employer is not required to obtain union consent before implementing a testing program (unless the agreement specifically requires this). But the employer must be able to demonstrate that it engaged in genuine consultation before proceeding.

Dispute Resolution

Enterprise agreements almost universally contain dispute resolution procedures. These procedures apply to disputes about the interpretation or application of the agreement, including disputes about drug and alcohol testing.

Common Dispute Scenarios

• Scope disputes — the union may argue that the testing program exceeds what the agreement permits (for example, that random testing is being conducted when the agreement only provides for post-incident and for-cause testing).
• Procedural disputes — an employee or the union may dispute how a specific test was conducted, arguing that it did not comply with the procedures specified in the agreement.
• Consequence disputes — the union may challenge the disciplinary action taken following a positive result, arguing that it is inconsistent with the agreement’s provisions.
• Consultation disputes — the union may argue that changes to the testing program were implemented without the required consultation.

Employers should be familiar with the dispute resolution procedure in their agreement and ensure that managers and supervisors understand it. Attempting to circumvent the dispute resolution process escalates conflict and may result in the Fair Work Commission ordering compliance.

Introducing Testing into an Existing Agreement

Where an existing enterprise agreement does not address drug and alcohol testing, introducing a testing program requires careful navigation.

Options for Introduction

• Workplace policy — the employer may be able to introduce testing through a workplace policy, provided the policy is lawful, reasonable, and communicated in accordance with the agreement’s consultation requirements. However, the enforceability of a policy-based testing program where the agreement is silent is a matter that the Fair Work Commission may be asked to determine.
• Agreement variation — incorporating testing provisions into the agreement through a formal variation process provides the strongest legal foundation. This requires negotiation with the bargaining representatives and approval by the Fair Work Commission.
• Side agreement or memorandum of understanding — a documented agreement between the employer and the union, while not part of the enterprise agreement itself, can provide a practical framework for testing that both parties have endorsed.

Bargaining Considerations

When drug and alcohol testing is being negotiated as part of a new or replacement enterprise agreement, both employers and unions should consider the following:

For Employers

• Flexibility — avoid overly prescriptive clauses that lock you into specific testing methods, frequencies, or technologies. The field evolves, and your agreement should accommodate future changes.
• Consistency with policy — ensure that the agreement’s testing provisions are consistent with your broader drug and alcohol policy. Contradictions between the two create enforcement difficulties.
• Comprehensive coverage — negotiate for all testing types you may need, including random testing. If random testing is excluded from the agreement, introducing it later will be significantly more difficult.

For Unions

• Employee protections — ensure that the agreement includes adequate protections for employees, including the right to confirmatory testing, access to support services, and a fair disciplinary process.
• Transparency — negotiate for provisions that require the employer to report on the testing program’s operation, including the number of tests conducted, the selection methodology, and aggregate results.
• Dispute resolution — ensure that the dispute resolution procedure clearly applies to testing-related disputes and provides for timely resolution.

Modern Awards

Modern awards generally do not contain detailed drug and alcohol testing provisions. However, some industry-specific awards reference testing in the context of safety-sensitive work. Where an award is silent on testing, the employer’s ability to implement a program rests primarily on the employment contract, workplace policy, and the general law of lawful and reasonable direction.

Employers covered by awards should ensure that their testing program is consistent with any relevant award provisions and that the policy has been communicated to all award-covered employees.

Practical Recommendations

• Read your agreement — understand exactly what your enterprise agreement says about drug and alcohol testing, including consultation, dispute resolution, and any specific testing provisions.
• Engage early with unions — proactive engagement with union representatives before implementing or changing a testing program builds goodwill and reduces the likelihood of disputes.
• Document consultation — maintain a detailed record of all consultation conducted, including notices provided, meetings held, views expressed, and how those views were considered.
• Seek legal advice — the intersection of enterprise agreements, workplace policy, and WHS legislation is complex. Professional legal advice is essential before implementing or significantly modifying a testing program in a unionised environment.

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