Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2005 11

NEGOTIATING THE CONTESTED TERRAIN
OF DRUG TESTING IN THE
AUSTRALIAN WORKPLACE
PETER HOLLAND,∗ AMANDA PYMAN∗

AND JULIAN

TEICHER∗

A

lcohol and illicit substance abuse in the workplace is an important human resource
and industrial relations issue. Although more sophisticated measures have been
developed to test and monitor drug use in the workplace, and despite tacit union support
on occupational health and safety grounds, the implementation of drug testing procedures
remains contentious. This paper examines the arguments for and against drug testing in
the workplace using an Australian case study where drug testing resulted in industrial
disputation that led to legal intervention and remedy.

INTRODUCTION
Alcohol and illicit substance abuse is becoming a major concern in the Australian

workplaces (Miletic 2004). The drug testing debate traverses a range of theoretical
perspectives including human resource management, industrial relations, labour
process theory and ethics. In this paper, we attempt to incorporate these themes
within the ongoing debate on drug testing in the workplace. By using this broad
framework to view the issues on drug testing in Australia, a more comprehensive
understanding and interpretation of the issues is developed. The perspectives of
the important players are used to examine the contested terrain of drug testing
and a case study of the introduction of drug testing is used to provide a deeper
understanding of the complex and contentious issues which arise.
This paper is organised into five parts. In the first section, the issue of drug and
alcohol testing is examined from the perspectives of employers, employees and
trade unions. Fitness for duty and holistic approaches to drug and alcohol testing
are reviewed in the second part of the paper. In the third section, a case study of the
implementation of drug testing in three BHP mine sites is reviewed to explore the
complex practical issues related to drug testing. In the fourth section, the issues
recognised in the literature are related to the key issues that emerged from the
case study. The final section concludes, showing the complex and contentious
matters pertaining to workplace drug and alcohol testing.

THE ISSUE OF DRUG AND ALCOHOL ABUSE AT WORK: DIFFERING

PERSPECTIVES

Substance abuse and the potential dangers it poses in the workplace are well documented. For example, Wall (1992) identifies that both illicit substance abuse and
∗ Monash

University.

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‘recreational’ substance use (e.g. alcohol) impact negatively on almost all industries in Australia, causing substantial costs in both human and economic terms.
While acknowledging the lack of accurate data concerning drug use in the workplace (Allsop et al. 2001; Allsop & Pidd 2001), the National Health and Medical
Research Council (NH&MRC) (1997) found that 22% of the working population

drank alcohol at harmful levels and up to 27% of the working population experienced alcohol-related problems annually. According to International Labour
Organisation (ILO) estimates, between 3 and 15% of fatal work accidents in Australia are related to drug and alcohol use (Miletic 2004; Wright 2004). A survey
by an Australian health company, Health Works, in 2002, found that 80% of
employers supported mandatory drug and alcohol testing in the event of a workplace accident (Thomas 2002). Similarly, in a recent independent inquiry into
workplace drug testing in the UK, 78% of employers indicated that they would
consider drug testing if they believed that substance or alcohol abuse was affecting
staff productivity (IIDT 2004).
The relationship between drug use and accidents at work is an important issue,
because occupational health and safety (OH&S) legislation in each Australian state
places an obligation on employers to provide a safe workplace for all employees
and visitors to sites which they control. Employers are subject to strict liability
under this law and face significant fines if found to be in breach (Keenoy & Kelly
1998). That employer liability extends to employees’ actions and/or omissions,
regardless of the employee’s state of mind, emphasises a key argument for drug
testing in the workplace.
Drug testing is commonplace in the USA where research indicates that the use
of drug testing programs in both employment and pre-employment situations
has been an important factor in reducing absenteeism and accidents, and is the
most common method of removing the issue of substance abuse in the workplace
(Osterloh & Becker 1990; Greenberg 1992; Hartwell et al. 1996; Flynn 1999).

This evidence provides a compelling case for implementing drug testing to ensure
that employees meet their contractual obligations to a satisfactory standard and
that employers meet their duty of care requirements under OH&S legislation
(DesJardine & McCall 1990). Implicit in this argument is that the employers
who have not implemented drug testing policies and programs are maintaining
unsafe workplaces (Redeker & Segal 1989). However, the cost-effectiveness and
the overall value of drug testing has been questioned (Gip 1999: 16):
The American Civil Liberties Union cites analysis by a committee of the National
Academy of Sciences (NAS) which found that most workers who use illicit drugs
never use them at work, and when they use drugs on their own time, they do so in a
way that does not affect work performance.

Performance, within the scope of the contract of employment, is an important and related consideration in the drug testing debate. DesJardine and McCall
(1990: 203) raise the question: To what level of performance are employers entitled? If an employee’s productivity is satisfactory, arguably that person is meeting
their contractual obligations. It follows that knowledge of drug use on the grounds
of productivity is not relevant to an employer. In addition, while duty of care is an

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important issue, not every job has the potential to do harm to others. DesJardine
and McCall (1990: 204) argue:
To say that employers can use drug testing to prevent harm is not to say that every
employer has the right to know about the drug use of every employee.

In this context then, less intrusive testing alternatives such as impairment testing
to determine fitness for work may be more effective, and less likely to raise privacy
and fairness concerns (Sorohan 1994). These are important considerations for
employees and their unions when drug testing is implemented in the workplace.
From the employee-union perspective, the principal consideration is the right
to privacy (Scott-Howman 2004). Using Mill’s principle of liberty, Bowie and
Duska (1990: 89) contend that employees have the right to do whatever they wish
as long as it does not harm the employer. It follows that if a person chooses to take

illicit drugs outside of paid work time, it is of no concern to the employer, provided
it does not impinge on work performance (Bowie & Duska 1990; Norington
2004). In addition, Maltby (1987) suggests that drug testing suffers from accuracy
problems. Typically, drug tests cannot determine whether the effects of illicit
drugs, which may remain in the system for days and even weeks, will substantially
impair or affect performance (ADCA 2004). Webb and Festa (1994) also note that
the link between drug usage and on-the-job injuries is at best tenuous. Drug testing
may also uncover other medical conditions or over-the-counter or prescribed
drugs used by employees (such as Viagra or metabolites of morphine), which
have the potential to affect the employment status or tenure of workers. This has
led Wasserstrom (1978) to assert that employees have a right to ‘informational
privacy’, which is complicated in Australia, given the exemption of employee
records from the Privacy Amendment (Private Sector) Act 2000 (Cwlth). DesJardine
and McCall (1990: 202) argue:
an employee’s right to privacy is violated whenever personal information is requested,
collected, or used by an employer in a way or for a purpose that is irrelevant, to
or in violation of, the contractual relationship that exists between employers and
employees.

Thus, the argument that the innocent have nothing to fear from drug testing

is erroneous, because testing may violate employee rights, particularly if it has
the potential to provide employers with generic medical information, which is
not relevant to the contractual relationship (Cranford 2001). Mandatory testing
may also be open to improper or malicious use to intimidate or target employees
who undertake activities that may be unpopular with management, such as union
activism (Webb & Fester 1994). Therefore, the use of drug testing within the
workplace may create an atmosphere of insecurity, oppression and anxiety in employees, and may actually result in lower performance and higher labour turnover
(Redeker & Segal 1989). Indeed, Bohle and Quinlan (2000) have claimed that this
has been an important consideration for Australian managers of US-based organisations that have pursued the introduction of drug testing procedures. Zwerling
et al. (1990: 2643) argue that, because of methodological problems, many assertions justifying pre-employment drug screening have been exaggerated. Similarly,

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Bahls (1998: 82) notes that the internet is replete with tips on how illicit drug users

can evade drug tests and detection.
Within the larger context of the employment relationship, work culture and
the social environment have also been identified as critical and complex factors
impacting the drug testing debate. For example, a culture of drug use, both legal
and illicit, in isolated locations has been linked to different ways of life, the work
environment and the physical location of work: geographical concepts of place
and space (Daly & Philp 1995; Hendy 2003). As Allsop and Pidd (2001: 5) note:
In a variety of cultures, formal and informal pressures still encourage weekly after
work team building and relaxation based on alcohol consumption. Sanctioned drugs
such as caffeine and tobacco have been embraced in ritualised breaks in worktime.

Indeed, a study of alcohol consumption in the Pilbara mining region of the state
of Western Australia (WA) found that alcohol consumption was 64% above the
state level (Daly & Philp 1995). A subsequent study of alcohol consumption by
Midford et al. (1997) in mining-related worksites found that the consumption was
greater than the national average. Drinking in the top risk category was on a par
with the national averages, and binge drinking was found to be more prevalent
and was related to shift work and isolation from family.
Aside from the explicit focus on the mining industry, a burgeoning body of research has focused on the link between the nature of the work and associated drug
use. Issues of control, alienation and stress, linked with individuals’ perceptions

of their powerlessness, have been identified as factors related to drug use in the
workplace (Tices & Sonnenstuhl 1990; Seeman & Seeman 1992; Greenburg &
Greenburg 1995; Ames & Grube 1999). As Midford (2001: 46) argues:
In the workplace, holding the view that drug use is a problem for the individual
worker is functional from the point of view of the employers, because it avoids any
exploration of how the workplace may contribute to the problem. However, to gain
an understanding of workplace drug problems, one must look at a full range of factors
that influence patterns of drug use.

The national union confederation, the Australian Council of Trade Unions
(ACTU), does not support the introduction of any form of biological testing of
workers for alcohol or other drugs in the workplace, except in very limited circumstances and subject to joint union and employer agreement (Mansfield 2001).
The ACTU argues that the introduction of testing cannot be seen as a ‘quick
fix’ solution, and is unacceptable and inappropriate in most circumstances. The
ACTU does not consider that the introduction of a testing program is an effective strategy for the workplace. Testing for alcohol and other drugs is usually an
inappropriate feature of a prevention program for a number of reasons, particularly: inaccuracy of test results (both positive and negative); drug testing measures
exposure, not impairment, particularly in the case of illicit drugs; problems and
errors with interpretations of test results; the impact of prescribed medication
and over-the-counter drugs on tests, and subsequently, the right of the employer
to know such information and the possibility of such information being used in

a discriminatory fashion; infringement of individual rights; problems associated

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with the right to privacy; and disruptions to industrial relations (Mansfield 2001;
Norington 2004).
The ACTU position is that there must be joint development of any drug testing
policy by unions and employers, particularly where the misuse of alcohol or illicit
drugs are identified as workplace issues. Indeed, any policy dealing with workplace
hazards and OH&S should be jointly developed and implemented. The ACTU
(Mansfield 2001) policy framework focuses on the following: safety at work; full
participation, and joint control, by workers and their representatives; applicability

to both workers and management; addressing the causes of alcohol or illicit drug
misuse in the workplace; a consultative, educative and rehabilitative approach;
and the maintenance of confidentiality at all levels.
This pluralist stance adopted by the ACTU is based on the premise that the
need for control and prevention measures arises only when drugs and alcohol are
misused to the extent that the user cannot properly and safely carry out regular duties. In considering an appropriate response in a particular workplace, there must
first be involvement of union representatives and, second, an examination of the
broad environmental factors pertaining to the individual workplace or industry.
The ACTU also argues that rehabilitation action should be undertaken during
working hours or through schemes that include paid leave. As in the literature,
a key issue is that the misuse of alcohol and other drugs may be symptomatic of
other problems such as: hazardous work; a poor work environment; unrealistic
deadlines; a lack of job satisfaction; a lack of worker participation and control;
inadequate training and supervision; work culture and shift work.
This approach is supported by the work of Hagen et al. (1992) who found a link
between higher alcohol consumption and work pressure, stress, lack of control
and over-work. Philips (2001: 39), in summarising the work of Roman et al. (2000)
on the relationship between stress at work and increased alcohol consumption,
states:
Much of this increase [in stress] has been stimulated by changes in work organisation
that have occurred in the second half of the twentieth century. Among the changes:
jobs have become more complex; responsibility has been devolved to less senior personnel; employer organisations have become larger and more global; manual labour
has been mechanised; machines have become more ‘intelligent’; and continuous production schedules have disrupted daily life patterns and resulted in more people
working for extended periods.

Indeed, the fatigue generated by these factors combined with increased deregulation of the Australian labour market raises serious issues regarding OH&S
(ACIRRT 1999). As Nolan (2000: 2) argues:
Employees and unions have questioned why random drug testing has assumed such
priority in an industrial climate where increasing demands have been placed upon
workers to work twelve-hour shifts. Evidence suggests that it is fatigue and not impairment through drug and alcohol abuse that leads to the majority of accidents.

If management is truly interested in these issues, the ACTU argues that a more
holistic approach should be adopted; for example, including fatigue monitoring

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and management systems (Mansfield 2001). This broadens the drug testing debate
and raises the critical issue of fitness for duty.

HOLISTIC APPROACHES AND FITNESS FOR DUTY
The issue of fitness for duty often raises a more subtle and complex issue: control
in the workplace. Unions tend to see the introduction of measures such as drug
testing as management exercising increased control under the guise of managerial
prerogative and as a strategy to marginalise the countervailing power of unions,
particularly where there is an absence of consultation. This was certainly emphasised as a key theme in the implementation of drug testing in a case study of
South Blackwater Coal (Holland & Wickham 2001). Webb and Festa (1994: 101)
observe that
On a broader scale, the notion of testing programs, especially if introduced unilaterally
and without reference to or consultation with employees and their representative
bodies, is philosophically at variance with labour relations in Australia.

Increasingly, this perspective has come under challenge with the emergence of
human resource management underpinned by a unitarist philosophy. This clash
of perspectives can potentially become an important source of conflict between
management and unions. The need to strike a balance between the employer’s
legal obligation and employees’ rights is a complex and sensitive issue pervading
the development and implementation of drug testing policies.
Similarly, Nolan (2000: 63) points out that legal obligations that are too dogmatically defined can clash with industrial relations. It is perhaps the impracticality
of a dogmatic approach that is leading to the development of a broader concept
of fitness for duty. Although this concept is most prevalent in the mining industry, where fitness for duty is embodied in regulations made pursuant to OH&S
legislation, it is also appearing in industries such as road and public transport. Traditionally, the concept of fitness for duty meant little more than pre-employment
screening of employees to determine their capacity to meet the requirements of
the job. More recently, as explained above, fitness for duty is often manifest in
testing regimens designed to detect impaired capacity to carry out the duties of
a position. Such approaches have often proved controversial because of the process by which regimens are implemented and deficiencies in the tests themselves
(Holland & Wickham 2001).
The need for a more holistic and pragmatic approach has led to advocacy of a
non-discriminatory testing regimen for a wide range of physical and psychological
factors, which may impair performance (Nolan & Nomchong 2001). Although the
search for appropriate tests remains problematic, the philosophical underpinning
of this approach is that the causes of impairment are not confined to circumstances
within the employee’s control and may be significantly affected by workplace
conditions under the employer’s control.
In order to explore these issues, this paper draws on a case study of the implementation of drug testing by BHP in three mine sites in the Pilbara. The case
study is illustrative of the contentious nature of workplace alcohol and drug testing

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measures, pre-implementation and post-implementation, despite the company
having adopted a consultative approach. The contested nature of the development and implementation of drug testing in BHP raises interesting and important
questions about the operation of drug and alcohol testing measures in smaller,
less well resourced organisations, organisations with an adversarial approach to
industrial relations, and in non-union organisations.

BHP IRON ORE MINES
Background
The Pilbara region is located 1600 km north of Perth. BHP produces approximately 65 million tonnes of iron ore per annum from mines in this region. BHP
Iron Ore has more than 1563 employees and 1300 contractors. The largest open
cut mine is at Newman. This mine is linked to major ore processing, stockpiling
and shipping facilities at Nelson Point and Finucane Island, on opposite sides of
the Port Headland harbour.
On the recommendations of a coronial inquiry after a fatal drug-related accident in 1994 and after several other incidents, BHP sought to introduce drug
and alcohol testing in 1996. After the introduction of voluntary programs, BHP
attempted to implement a mandatory drug and alcohol testing program at each
of its sites in the Pilbara. The introduction of mandatory testing stemmed from a
recognition that BHP had a responsibility to ensure the safety of all its employees.
As the manager of public affairs for BHP Iron Ore, Judith Thompson reiterated:
There’s a duty of care that spreads among the workforce and from supervisory people
to the workforce. Based on that duty of care, we have developed a policy in relation
to drugs and alcohol on site, which is also consistent with WA mining legislation.1
(ABC Radio National 1996)

The mandatory program proposed by BHP required employees to submit to
random drug testing as a condition of employment. If the result was positive, the
employee was liable to be sent home on paid special leave on the first occasion.
On a second occasion within a period of 2 years, the employee was liable to be sent
home on unpaid special leave. On the third occasion in which a positive result was
recorded within the same time period, the employee’s continuing employment
would be the subject of discussions with the company (BHP Iron Ore Pty Ltd v.
Construction, Mining Energy Timberyards, Sawmills and Woodworkers Union West
Australian (WA) Branch, West Australian Industrial Relations Commission (WAIRC)
130, 19 June (1998)) [WAIRC 130, 19 June 1998]. Education was a central part
of the program, and there was provision for assistance to the employees with a
suspected alcohol or drug dependency. As Thompson explained:
The policy includes education about the effects of drug and alcohol abuse and also
offers counselling to people should they have trouble controlling their use of these
substances. (ABC Radio National, 18 March 1996)

Issues preceding the dispute
In 1997, BHP held discussions with employees and the four unions, which represented the different sections of the workforce, regarding the introduction and

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implementation of the program. The unions held separate meetings of their members. A valid majority of employees approved the implementation of the program,
with the exception of one union: the West Australian branch of the Construction,
Mining, Timberyards, Sawmills and Woodworkers Union. Their members at the
Newman and Finucane Island mines voted overwhelmingly to reject the program.
Despite the lengthy negotiations with employees and the four unions, BHP did
not implement mandatory testing because it was regarded as impracticable to apply the program to only part of the workforce. In addition, the three unions that
supported the program did so on the proviso that it applied in isolation to all
employees (WAIRC 130, 19 June [1998]).
The main objection of the dissenting union was to drug testing. The union was
initially opposed to both alcohol and drug testing, but by the time the case reached
the West Australian Industrial Relations Commission (WAIRC), the union no
longer objected to alcohol testing. Drug testing was argued to be an unreasonable intrusion of an individual’s privacy. The union also objected to employees
using prescribed or over-the-counter drugs that might impair their work performance, being required to report this to the company, and to the company
maintaining records of this drug use for a minimum of 2 years (WAIRC 130,
19 June [1998]).
The dispute
The dispute over the introduction and implementation of drug testing at three
BHP sites was referred to the WAIRC by BHP after 2 years of consultation. The
Commission was asked to consider the program as a whole; specifically, whether
it was fair and reasonable.
The dissenting union put forward three key arguments against the program.
First, it questioned the prevalence of drug use in the workplace and argued that
there was no evidence to justify the introduction of a testing program. For example,
although voluntary drug testing was in force at BHP sites during 1997–1998,
there were no reported incidents. Second, the union questioned urine testing as a
reliable indicator of impairment resulting from drug abuse. Finally, it was argued
that BHP should not impose the program on members simply because they had
obtained the consent of a majority of the members of the other unions (WAIRC
130, 19 June [1998]).
In response to the union, BHP argued that the implementation of the program
was necessary to enable the company to satisfy its common law duty to provide
a safe workplace and to satisfy WA mining legislation. On the issue of privacy,
BHP argued that the testing program protected employees as far as possible by
providing for strict security measures designed to avoid publication of any test
result or any other information provided as part of the program. Responding to
the union’s second argument, BHP acknowledged the validity of the criticisms
of drug testing as an indicator of impairment. Although acknowledging that such
tests were not a measure of impairment, they maintained that the cut-off levels of
drugs allowed before a positive result was returned were so high that a positive
result was a reliable indicator of safety concerns. BHP also argued that it should
be free to implement the policy in accord with the wishes of a majority of the
workforce having undertaken extensive consultation with employees and unions,

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regarding the implementation and implications of the program (WAIRC 130, 19
June [1998]).
Both parties used expert witnesses to debate the extent to which drugs adversely
affected safety in the workplace. The union argued that very little was known about
the impact of drugs on workplace safety and that some drugs could have positive
effects. Although accepting that little was known about the effect of drugs, BHP
argued that the effects of drugs on cognitive functions, psychomotor performance
and other skilled tasks strongly predicted serious adverse effects on workplace
safety (WAIRC 130, 19 June [1998]).
Dispute resolution
On 19 June 1998, the WAIRC endorsed a requirement that BHP employees
working on the three sites submit to random drug testing (Moodie 1998). On this
basis, the WAIRC considered it reasonable for BHP to implement a scheme designed to detect, so far as possible, the level of consumption of drugs by employees
and to implement procedures designed to deter the use of drugs in the workplace.
The Commission ruled that the introduction of drug and alcohol testing as part
of BHP’s attempt to satisfy its responsibilities to provide a safe workplace for all
employees was not unreasonable, harsh or unfair (WAIRC 130, 19 June [1998]).
Weighing up intrusion and privacy concerns on the one hand with the legal
obligation to provide a safe workplace on the other, the Commission concluded
that, although the program constituted an invasion of individual privacy, workplace health and safety requirements and community expectations were such that
there would necessarily be some constraint on the civil liberties of employees.
In addition, the program included elements aimed at minimising intrusions of
privacy; for example, urine samples were to be provided in private and would not
be witnessed by the tester (WAIRC 130, 19 June [1998]).
In making its decision, the WAIRC upheld several elements of the program as
important. These included the provision for formal education, counselling and
rehabilitation. The fact that the penal elements of the program were subordinated
to education and rehabilitation were also important in the WAIRC’s assessment.
For example, the program provided that after 2 years any positive reading would be
expunged from an employee’s record. Another important feature of the program
was that the cut-off levels set for a positive test were significantly higher than the
Australian standard, distinguishing the program from many others. In this sense,
the tests were regarded as rigorous with experts identifying the probability for
error as less than 1% (WAIRC 130, 19 June [1998]).
In summary, the WAIRC found insufficient merit for the union’s objection to
the program, and endorsed BHP’s extensive consultation with the workforce on
the dynamics of the program. The WAIRC’s endorsement of the program also
emphasised the importance of a formal review mechanism as new, more efficient
and effective drug and alcohol testing methods became available (WAIRC 130,
19 June [1998]).

DISCUSSION
The literature on workplace drug and alcohol testing identifies five important issues: OH&S obligations on employers to maintain a safe workplace; the

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relationship between drug/alcohol use, accidents, costs and work-related factors;
the inaccuracy of drug and alcohol testing measures; fitness for duty and contractual obligations related to employee performance; and the right to privacy. The
BHP case study bears out four of the five issues. First, while OH&S and legal
obligations were used as the principal justification underpinning the introduction
of random drug testing at the three BHP mine sites, the issues of trust, control and
surveillance were important in the Construction, Mining, Timberyards, Sawmills
and Woodworkers Union resistance to the program. To support this position,
they pointed to the fact that in the period 1997–1998 when voluntary drug testing was in place no incidents were reported, inferring a safe and responsible work
culture. Second, the informational privacy of employees was a key concern, particularly in relation to prescription medication, illustrating the argument that the
collection of generic medical information about an employee is not relevant to
the employment contract and can infringe employees’ perceived rights to privacy.
On this point, the Commission did conclude that the program constituted an
invasion of privacy and the civil liberties of employees, yet, the length BHP had
gone to minimise this intrusion was significant and therefore a persuasive factor
in the final decision.
There is broad agreement in the literature that workplace drug and alcohol
testing programs should be jointly developed through a consultative approach
with employees and unions (Mansfield 2001; Nolan 2000; Nolan & Nomchong
2001; Webb & Festa 1994; Miletic 2004). Such an approach is held to be part
of a holistic approach to OH&S, where education and rehabilitation are defining characteristics of the program. In the BHP case study, it was clear that in
the implementation of the program, a holistic and consultative approach was
taken, and test levels which were deemed to reflect impairment consistent with a
fitness for duty approach were also used. These were significant in the Commission’s endorsement of BHP’s random drug testing program as fair and reasonable.
This is also consistent with the pluralist stance endorsed by the ACTU on the
successful development of drug testing programs. Nolan (2000) has argued that
without this approach, a unilateral drug testing policy that places an employee
in a position that could jeopardise their employment is coercive and therefore
unacceptable.
The issues of fitness for duty and joint program development were both clearly
illustrated in the case study, indicating that for sensitive and contentious issues
such as drug testing to be handled successfully, employee and union acceptance
is critical. Although alcohol and illicit substance abuse in the workplace may
be viewed in the context of an employer providing a safe workplace, the issues
are not necessarily clear cut, and should be examined under a broader interpretation of workplace OH&S that incorporates fitness for duty and work-related
considerations.
Related to the implementation of drug testing is the key issue of employee education and assistance. The case study illustrates how BHP embraced a supportive
rather than a punitive approach, which included the provision for employee education and rehabilitation. This latter provision was a defining characteristic of
the program upheld by the Commission as fair and reasonable. As identified in

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the first section of the paper, empirical research supports the link between employee education and assistance and the reduction and prevention of drug abuse
(Desjardine & Duska 1997; Oliver 1994). A drug testing policy that is not linked
to a well established rehabilitation program is likely to result in the removal of the
employee from the workplace, but not the illicit drug use that may enter the workplace with a replacement employee. Thus, it is likely to attack the symptoms of
drug use and/or abuse, rather than addressing their underlying causes. Provision
for education and rehabilitation in the implementation of a drug testing program
reflects a holistic approach to understanding and managing the issue of substance
abuse in the workplace, whereby the parties work together to maximise employee
well-being. Moreover, such an approach is more likely to be in the long-term
interest of employers, as it entails identifying the underlying dysfunctions in the
workplace and its operation.

CONCLUSION
The issues surrounding the development and implementation of drug and alcohol testing in the workplace are complex and contentious. From an employer
perspective, a common law duty of care, OH&S obligations and a link between
drug/alcohol use and accidents at work, provide compelling reasons for the introduction of such measures. From an employee perspective, the right to privacy,
fitness for duty and workplace culture are fundamental considerations in the development and implementation of drug and alcohol testing programs. Despite
these complex and contentious issues, there is a broader agreement in the literature that the development and implementation of drug and alcohol testing must
be part of a holistic approach to OH&S at the workplace (Mansfield 2001; Nolan
2000; Nolan & Nomchong 2001; Webb & Festa 1994; Miletic 2004). This necessarily involves a consultative approach, whereby employers and unions work
together to develop an appropriate program for a given workplace, and education
and rehabilitation are cornerstones of that program.
The BHP case study illustrates the contentious nature of drug testing in
Australian workplaces, in a situation where employer was found to be undertaking a ‘best practice’ approach to the issue. The problems, issues and complexity
surrounding the development and implementation of drug testing policies in the
workplace, even where significant resources are invested in achieving an outcome
suitable to all parties, remain fraught with difficulties. In upholding BHP’s position to implement a drug testing program, the courts reinforced the importance
of due process and consultation where drug testing is part of a wider occupational
health and safety approach.

ENDNOTE
1. It is a requirement under the Western Australian Mines Safety and Inspection Act 1994, and associated regulations, that no drugs or alcohol are permitted on mine sites. Specifically, Regulation 4.7 prohibits anyone from being in, or on a mine, while the person is affected by
drugs or alcohol, and, entitles the mine manager/supervisor to direct any employee reporting for duty who in their opinion is adversely affected by alcohol or drugs, to leave the
mine.

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