Under Australia’s harmonised work health and safety legislation, the duty to ensure a safe workplace rests squarely on persons conducting a business or undertaking (PCBUs) and, personally, on officers of those entities. Drug and alcohol impairment is a recognised workplace hazard, and how an organisation addresses this hazard — or fails to — has direct implications for whether PCBUs and officers are meeting their legal duties.

This article examines the WHS obligations that apply to drug and alcohol testing programs, the personal liability exposure for officers, and how a well-structured testing program demonstrates compliance with the primary duty of care.

The PCBU’s Primary Duty of Care

Section 19 of the Work Health and Safety Act 2011 imposes a primary duty on PCBUs to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the business or undertaking. This duty is non-delegable — it cannot be contracted out to a third party or delegated to a subordinate.

The duty encompasses the provision and maintenance of:

• A work environment without risks to health and safety.
• Safe plant and structures.
• Safe systems of work.
• Adequate facilities for the welfare of workers.
• Information, training, instruction, and supervision necessary to protect workers from risks to health and safety.
• Monitoring of the health of workers and the conditions at the workplace for the purpose of preventing illness or injury.

Drug and alcohol impairment is a hazard that falls within the scope of this duty. An organisation that is aware of the risk of impairment but takes no steps to address it is failing to meet its primary duty of care.

Officer Due Diligence

Section 27 of the WHS Act imposes a positive duty on officers — which includes company directors and persons who make, or participate in making, decisions that affect the whole or a substantial part of the business — to exercise due diligence to ensure that the PCBU complies with its duties.

What Due Diligence Requires

The Act specifies six elements of due diligence:

• Acquire and keep up to date knowledge of work health and safety matters.
• Understand the nature of the operations and the hazards and risks associated with them.
• Ensure appropriate resources and processes are available to eliminate or minimise risks.
• Ensure appropriate processes exist for receiving and considering information regarding incidents, hazards, and risks, and for responding to that information in a timely way.
• Ensure the PCBU has and implements processes for complying with its duties.
• Verify the provision and use of the resources and processes mentioned above.

For officers, this means that passive reliance on management to “handle” drug and alcohol testing is not sufficient. Officers must actively satisfy themselves that the organisation has a testing program, that it is adequate for the risks involved, and that it is being implemented effectively.

Reasonably Practicable Steps

The standard of care under the WHS Act is what is “reasonably practicable” — a concept that requires balancing the likelihood of a hazard or risk eventuating, the degree of harm that might result, what the person knows or ought to know about the hazard, the availability and suitability of ways to eliminate or minimise the risk, and the cost of doing so.

How Testing Programs Satisfy This Standard

A drug and alcohol testing program is one of the most direct and demonstrable ways to address the hazard of workplace impairment. It satisfies the reasonably practicable standard because:

• The hazard is well-established — substance impairment is a known contributor to workplace incidents, injuries, and fatalities. Safe Work Australia data confirms this.
• The risk of harm is significant — impairment-related incidents can result in death, serious injury, and significant property damage, particularly in safety-sensitive industries.
• Testing is available and effective — Australian Standards provide a framework for reliable, legally defensible testing using both urine and oral fluid methods.
• The cost is proportionate — the cost of implementing a testing program is modest relative to the potential consequences of an impairment-related incident, including workers’ compensation claims, regulatory penalties, litigation, and loss of life.

Personal Liability for Officers

The due diligence duty under section 27 is a personal duty. Officers can be prosecuted individually for failing to exercise due diligence, independently of whether the PCBU is also prosecuted. Penalties for officers include substantial fines and, in the case of Category 1 offences (reckless conduct that exposes a person to a risk of death or serious injury), imprisonment for up to five years.

What This Means in Practice

An officer who is aware that the organisation does not have a drug and alcohol testing program — or that the existing program is inadequate — and who does not take steps to address this, is personally exposed. This exposure is heightened where:

• The organisation operates in a safety-sensitive industry where impairment risk is well-known.
• There have been previous incidents or near-misses involving substance impairment.
• The inadequacy of the testing program has been raised (for example, in audit findings, incident investigations, or employee reports) and not addressed.

Case Examples

While case law on officer liability specifically in the context of drug testing is still developing, several WHS prosecutions illustrate the broader principle:

• Failure to implement known controls — courts have consistently found PCBUs and officers liable where a known risk was not addressed despite the availability of reasonable controls. A testing program is precisely such a control for the hazard of impairment.
• Inadequate systems of work — where an organisation’s safety management system does not address substance impairment, this has been identified as a deficiency in the system of work.
• Post-incident scrutiny — following serious workplace incidents, regulators routinely examine whether the organisation had a drug and alcohol testing program, whether it was adequate, and whether it was being implemented. The absence of a program, or evidence of its inadequate implementation, strengthens the prosecution’s case.

Building a Program That Demonstrates Compliance

A testing program that genuinely demonstrates WHS compliance has the following characteristics:

• Risk-based design — the program is calibrated to the specific risks of the organisation’s operations. Higher-risk activities warrant more intensive testing.
• Comprehensive policy — the policy addresses all testing types, defines consequences, provides for support and rehabilitation, and is communicated to all workers.
• Consistent implementation — the program is applied uniformly across the organisation. Inconsistent application undermines both its deterrent effect and its legal defensibility.
• Complete documentation — every element of the program is documented: policy, training records, selection events, test results, chain of custody, follow-up actions, and program reviews.
• Regular review — the program is reviewed at defined intervals (at least annually) to ensure it remains current and effective.
• Board visibility — officers receive regular reporting on the program’s operation, including testing volumes, results, compliance metrics, and any identified deficiencies.

Recommendations for Officers

• Request a briefing on the current state of your organisation’s drug and alcohol testing program. Understand its scope, its limitations, and whether it is being implemented as designed.
• Review the most recent program audit — if there has not been one, commission one.
• Ensure adequate resourcing — the program must be resourced to operate effectively. Under-resourcing is a governance failure that can contribute to officer liability.
• Receive regular reports — establish a reporting cadence that provides you with visibility of program performance and any emerging issues.
• Document your engagement — your due diligence is demonstrated not only by what you do, but by your ability to prove that you did it.

Ensure your testing program meets the standard your WHS obligations require. Start a free trial of FairTest and gain the documentation, reporting, and audit capability that demonstrates genuine compliance — to regulators, insurers, and boards.