The Legislative Council’s Legal and Social Issues Committee has recently conducted an inquiry into workplace drug testing in Victoria. Workplace drug testing is mandated in several industries, including corruption agencies, and for police, bus drivers, commercial passenger vehicle drivers, and boat operators, but there is no guiding legislative framework for whether, how, and when it should be conducted in other industries. The Committee’s inquiry investigated:
- the legislative and regulatory framework for workplace drug testing including the treatment of prescription medicinal cannabis compared to other prescription medications under that framework;
- whether the framework for occupational health and safety and workplace drug testing may be improved to benefit medicinal cannabis patients; and
- whether current workplace drug testing laws and procedures are discriminatory.
Our submission and evidence to the Committee explored several issues including:
- the WorkSafe guide for developing a workplace alcohol and other drugs (‘AOD’) policy;
- the Canadian jurisprudence on workplace drug testing;
- the 2005 Victorian Law Reform Commission report on workplace privacy, which led to a very narrow part 2A on workplace privacy in the Surveillance Devices Act 1999 that does not encompass workplace drug testing; and
- a proposal for a Workplace Drug Testing Act for Australia.
The Committee’s report was tabled in Parliament in August and made several key recommendations.
First, the Committee recommended that the Government should support the principle that in non‑mandated industries, drug testing should only occur where employers have a well‑founded belief that an employee may be impaired at work and should only then occur in the context of a comprehensive, AOD policy. This recommendation followed our evidence that workplace drug testing should be based on perceived impairment, in line with Canadian jurisprudence.
Second, the Committee recommended that the Government should amend the definition of discrimination in s 7 of the Equal Opportunity Act to clarify that where a person uses prescription medication or requires medical treatment for a disability, this is a characteristic that a person with that disability generally has. This recommendation also followed our submission.
Third, the Committee made several recommendations directed to WorkSafe, Victoria’s workplace safety regulator, namely that it should:
- update its advice on AOD policies with information that medicinal cannabis should be considered in the same way as all medications that cause impairment;
- convene a working group consisting of industry, government departments, and public sector AOD providers to update its guide for developing a workplace AOD policy based on its finding that the existing guide is ‘no longer fit‑for‑purpose’, and develop a Compliance Code;
- establish a framework to ensure that workplace drug policies are communicated in a clear and easily understandable manner which is visible and accessible to all employees; and
- investigate impairment testing methodologies, including the results of the current medicinal cannabis closed track driving trial, and publicly advise on their applicability to workplace drug testing.
These recommendations were based on our evidence of inconsistencies across the legislative framework governing AOD testing in Victoria, including different reasons permitting testing and samples being provided by different methods.
Our submission and evidence were extensively cited in the report, including regarding the key principles that should underpin workplace AOD policies, and we look forward to the Government’s response, which is due by February 2025.