Q & A on 2GB regarding drug testing in the workplace

Tuesday, 29 April 2014

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LG – Luke Grant/DT – David Taylor/C1,2,3 etc– Callers

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LG      David Taylor is with us today talking Employment Law, David of course from Turner Freeman, nice to see you David, are you well?

DT      I’m very well, how are you Luke?

LG      I’m just fine thank you, 131873 is the number if you’d like to talk Employment Law with David Taylor, will start with, there was a report out this morning about the incident of usage of illicit drugs in Australia. Drug testing in the work place, when is it OK and or allowed and when is not allowed?

DT      It’s been a complex issue and it’s still a complex issue, there’s a fair few rules and different sets of interests. The key interest for an employer is to ensure that the work place is safe, so they’ve got this primary interest and obligation under Occupational Health and Safety legislation, and that leads to the consequence of being able to require drug testing if they’re concerned that there would be employees impaired or who are causing a risk to themselves and others in the workplace.

LG      How do they test you? Is there are um, I wonder how they do that?

DT      There is a bunch of different ones and that’s been one of the really interesting issues over time. So for example cannabis use has been a key one. Traditionally cannabis has been tested through urine. Urine testing detects use that’s gone back 2, 3 or 4 weeks. Increasingly there are better tests that can be done through your saliva and there was a decision not so long ago from the Fair Work Commission where they said, well in circumstances where you can get a good read on whether somebody made be impaired through saliva, there is no good reason to be using urine testing any more.

LG      And I’m assuming they have some independent body come in and take the test.

DT      Yeah, the employers that do it well have really good policies. It’s important for example that you be able to do it on a random basis or some good fair distribution of employees, so you just don’t pick on somebody and say well I’m going to go after you. And similarly there is transparency and certainty in the results, so they get down by professionals and they are sent away to professionals and they are checked by professionals. One of the other things that happens occasionally and is quite clear, employers try to cheat the system.

LG      Do they!

DT      And there is no doubt if you do that and get caught, it’s nothing to do with the drugs it’s just straight misconduct and you’re in a fair bit of trouble.

LG      Oh you are in trouble.

DT      Yeah

LG      Alright, 131873 is the number if you want to call and ask a question of David Taylor from Turner Freeman. If you say no, I don’t want to be tested, I’m not going to do that, what happens then?

DT      It depends on whether the direction is reasonable. So if it’s inside a policy and it’s a reasonable direction, that’s a refusal to follow a lawful direction and you’re in trouble.

LG      Hang on I’ve been employed at a place for 20 years.

DT      Yep.

LG      2 years ago they come up with this drug testing thing and I’m a proud bloke, whose worked hard and done well, I say hang on, I’ve worked here for 20 years and never had a problem and all of a sudden you want me to “piddle in a jar”, not happening! How disrespectful, how dare you!!

DT      A key thing would be what you do. So if you’re in an industry where you being impaired is a real issue, so if you’re a train driver or a bus driver or you’re operating machinery

LG      Member of Parliament!

DT      Well! Ya know!! These things are going to change the equation! I’m not sure which way a member of parliament goes!!

LG      That’s right, they’d probably be a ICAC, they’d be too busy to be doing any testing any way.

DT      If impairment was a disqualifying factor, we’d be in trouble.

LG      Yeah, yeah, Jim g’day

C1       Yeah, g’day how are you blokes!

LG      Well mate.

C1       An unfair dismissal ok, 4 weeks was awarded, ok so the company didn’t pay, then on top of the 4 weeks there was $10,000 worth of child support that was taken, deducted from my wages, which wasn’t passed along to child support, then they decided to put themselves in the self administration and started up another company. How do you go about that one?

DT      The company’s winding up and setting up a new company under virtually the same names are a phenomenon called “Phoenix” companies, it’s about things rising from the ashes and it’s a huge problem and it’s been an ongoing problem for a long period of time.

LG      Is it illegal?

C1       Why doesn’t a federal politician do something about it?

DT      There are some areas where it’s unlawful; it is so common and so hard to prove. That it’s consistently gotten away with. One thing that you can do, if there’s been a breach of many of the provisions of the Fair Work Act, the liability isn’t just borne by the employer, but it’s also borne by any accessory to the Act, so a director or an owner who does that personally may be liable and they can be sued in their own name for the breach of the act that occurred to you.

C1       So the monies that have been deducted from my wages and pocketed is that like, what would you call it, stealing of a service.

DT      Well there is a provision of the Fair Work Act that prohibits money being taken from an employees pay other than as directed by the employee, so you, I can’t tell you off hand whether or not that’s one of the provisions to which the accessorial liability would apply. But potentially there may be a claim that you might want to have a look at, in terms of targeting the director in person

C1       You bet I want to.

LG      Ok good luck mate, Jim. Gee that sounds like, that sounds horrible.

DT      Doesn’t sound good, does it.

LG      Poor Jim. So what was that called, Phoenix.

DT      Phoenix Companies, they’re companies that rise from the ashes, like a phoenix.

LG      Hang on, that can’t be right.

DT      Well if one looks at it objectively, a company is going along, it runs out of money and it’s deregistered, and it ceases to exists. Now if the people who are involved in that company want to set up a new business, they do and they start it all again.

LG      But they leave their liabilities at the door of the old one.

DT      That’s the common, and employees are consistently left unpaid and aggrieved by this sort of thing and often, they then get re-employed by the new company on lesser terms.

LG      We’ll take a break, it’s twelve to two.

LG      131873, I’m with David Taylor, employment law specialist at Turner Freeman, lets say g’day to Reg, David.  G’day Reg

C2       G’day boys,

DT      Hi Reg

C2       I’m a heavy vehicle operator. I’ve just done my RMS medical, which I passed. And now my employer wants me to do their own medical, am I, have they got a right to make me do one, or shouldn’t the one I’ve passed with the RMS be enough or

DT      It depends if they’re looking for different things and whether or not they’ve got different, they’re got a legitimate expectation of having, being able to identify different issues. So if the employer one, would for example look as to whether your fit for long distance travel and the RMS medical doesn’t do that, I’m not saying that’s the case, but as an example, then it may be legitimate. If it’s looking at the same thing or if it’s not looking for anything that is relevant to your job, then you’re probably reasonably, on reasonably solid ground to say, well you’ve got a medical if there is something else you want to know come and see me and we’ll talk about it.

C2       By and by, they’re very very similar and the employer never gets the information. It’s just to say whether you’re fit to drive a heavy vehicle or not and obviously by holding the licence you are, so.

DT      The employer is entitled to know whether your fit or not to do the job. They are not entitled to have information about your health that is not relevant to that central question.

LG      Alright Reg, there you go, David in Londonderry.

C3       Hi ya mate

LG      Yeah, we’re well mate, what’s your question?

C3       I had a day off last week to take care of my sick child. Now I’ve got a certificate to say that I took care of my sick child, even though my child didn’t attend a doctors surgery. Now my employer is saying that they don’t have to pay me for the day. Is that right or is that wrong?

DT      Why are they saying they don’t need to pay you for the day?

C3       They are saying because, I didn’t take my son to the doctor, I had a certificate to say I attended to take care of my son due to the duty of care for my child. They are saying they don’t have to pay me for the day, is that correct or not correct.

DT      Taking care of a child is essentially the same as taking sick leave. And an employer can ask for such evidence that is reasonable to demonstrate that you were doing what you said you were doing. So, that doesn’t go to the extent of having to acquire a medical certificate for the child, but it does require potentially some evidence of it. A statutory declaration for example may usually be sufficient.

C3       Righto, I got a certificate from a doctor saying I took care of my son, that should be enough, shouldn’t it?

DT      It’s whatever evidence reasonably would be required, to convince a reasonable employer that that’s what you were doing.

LG      That would sound like.

DT      I would have thought so.

LG      Reasonable, yeah in the true sense of the word. 131873 Steve on line 4. G’day Steve.

C4       Yeah g’day fellas, how ya going.

LG      Good thanks, what was your question Steve?

C4       Ok I’ll try and simplify this cause it is a bit of a complex situation, but I’ll keep it pretty simple.  Basically I worked for a company for around 10 years. The company for 95% of that time employed 50+ people. The company over a 12 month period, shrunk and was making people redundant and got smaller and smaller to a point where it reached about 8 employees.

DT      Any by the time you were retrenched they had less than 15 and so you didn’t get any redundancy payment?

C4       Exactly.

DT      Yeah, yeah

C4       Is there any I can do about that, I’ve gone through FEG, and FEG are saying, well sorry the Act says, the amount of people at the time you were made redundant.

DT      To explain the issue is precisely that. Redundancy payment under the Fair Work Act is only payable if at the time you’re retrenched the employer employs more than 15 employees. So if you get a company winding down you often get the situation where people at the end are being retrenched even when there is less than 15 employees and they miss out on any redundancy payment. The issue is when the decision is made, to retrench you, so even if the decision to finish you up doesn’t happen too much later, if the decision to retrench you happens earlier than that’s the relevant point in time, but it is a real hole in the way the system works and a fair few people miss out consistently.

LG      Steve we have to leave it there mate, because of time, thank you so much for your call, sorry we didn’t get to our other callers there, but David will be back sometime down the track. Good stuff, is that phoenix company thing and even that point there, gee there are some holes aren’t there.

DT      Yeah, there are some tough bits that people miss out on.

LG      Yeah, great stuff. David thanks for coming in mate. Good to see you.

DT      Thanks for having me.

LG      David Taylor the employment law specialist at Turner Freeman.