Whether viewed as the action of a "Stalinist state" or an essential work health requirement, drug testing employees is controversial. Add in the many layers of complexity of public sector employment, and the topic is enough to bring on a headache.
The Canberra Times recently reported that an Australian Crime Commission employee resigned after the commission's drug-testing program was extended to cover all staff, not solely those in "operational" roles. This raises a host of interesting employment law questions and hypotheticals, the most extreme of which might be: could the Australian Public Service decide to introduce drug testing for all employees?
Section 13 of the Public Service Act prescribes the APS code of conduct, which includes an obligation to comply with applicable Australian laws and to behave in accordance with the APS values. The Public Service Commission says "if an APS employee misuses alcohol or other drugs and this adversely affects their performance, the safety of colleagues or the reputation of the APS, they may be in breach of the code".
While some parts of the code only apply to acts "in connection with APS employment", the section is more broadly restricted by judicial interpretation. Even the obligation to "comply with any lawful and reasonable direction", although subject to no textual inhibition, cannot be considered to have carte blanche effect: public servants "are entitled to a private life". The vexing question, therefore, is: to what extent can Commonwealth agencies regulate the "outside of work" activities of their employees?
For example, a 2013 interim practice statement from the Australian Customs and Border Protection Service says: "Customs workers must not possess or use prohibited drugs at any time, whether in Australia or overseas." The Customs (Drug and Alcohol Testing) Regulation authorises testing for any such consumption.
It is fairly uncontroversial to suggest that the use of banned drugs during work would likely amount to a breach of the code (including failure to comply with a lawful and reasonable direction, as per Customs' practice statement). But the law becomes blurry if an employee uses illicit substances outside of work in their own home on a weekend. Although the Customs policy uses definitive terms ("at any time"), courts have held that the ability of the Commonwealth to regulate out-of-work conduct extends only to behaviour that the particular agency has a "legitimate interest" in regulating.
Thus, in McManus v Scott-Charlton, which concerned an AusAID employee harassing a colleague outside of work hours and the workplace, in contravention of a direction to the contrary, Justice Paul Finn held that "once an employee's conduct can be shown to have significant and adverse effects in the workplace – because of its impact on workplace relations, on the productivity of others, or on the effective conduct of the employer's business – that conduct becomes a proper matter of legitimate concern to an employer".
To what extent, though, does Saturday night drug use have a significant and adverse effect on the workplace? Here, the specific facts of the particular case are likely to be essential, with factors such as context, seniority and position being relevant. Private use of banned drugs by a front-line Customs officer, for example, may be said to have a substantial negative effect on his or her ability to properly go about preventing drug imports (particularly the public perception of that ability). However, the same activity on the part of a receptionist at Customs may have less of a detrimental effect.
The 2012 Fair Work Commission case of Endeavour Energy v CEPU, although not public sector-specific, provides interesting guidance. There, the decision of an electrical infrastructure company to introduce random drug and alcohol testing across its workforce was resisted by various unions. Endeavour Energy argued before Senior Deputy President Jonathan Hamberger that urine testing was reasonable (and that not testing for drug and alcohol use would beach its WH&S obligations), whereas unions described the proposed regime as unjust and unreasonable. The unions did not, in principle, "oppose the concept of random alcohol and other drug testing" per se; rather, they challenged the testing of urine as opposed to saliva.
Hamberger began his decision by quoting Shell Refining (Australia) Pty Ltd v CFMEU: "random testing is an intrusion on the privacy of the individual, which can only be justified on health and safety grounds". However, beyond that WH&S justification, "the employer has no right to dictate what drugs or alcohol its employees take in their own time". As urine testing could detect drug use from several days beforehand, whereas oral fluid testing could not, the introduction of the former "would be unjust and unreasonable", particularly because an employee could test positive "even though their actions were undertaken in their own time and in no way affect their capacity to do their job safely". Hamberger's decision was upheld on appeal.
Endeavour Energy demonstrates the need to tailor drug-testing programs to a legitimate purpose rather than apply them too broadly. While stringent testing and no-tolerance policies on employees in high-risk areas may be justified, applying such an approach to all employees regardless of their roles may be considered less favourably.
That said, returning to the hypothetical raised earlier, there appears to be no legal impediment to either regulatory or legislative introduction of widespread drug testing throughout the APS. Practical and political considerations notwithstanding, the rights and duties of APS employees are ultimately left largely to the whim of the government (particularly in the absence of a bill of rights), and common-law protections for private sector employees can be discarded in the APS context through statutory intervention.
Yet this does not give the government plenary power to control every aspect of its employees' lives, 24 hours a day and seven days a week. Breach findings flowing from a positive drug test, particularly if the drugs were consumed outside of work, could expect judicial challenge. Further litigation may be needed to shed light on the metes and bounds of this issue.
Drug testing is an area in which APS decision-makers should tread carefully. Although there is undoubtedly a legitimate WH&S interest in ensuring staff are not under the influence of illicit substances during work hours, encroaching on an employee's private life has civil liberty and privacy implications. Finn's observation in McManus is particularly apt in this regard, exhorting the need for a carefully balanced consideration of these competing interests: "I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified."
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