Finally! Clarity for drug testing at Queensland coal mines

By Hedy Cray.

Key Points:
Although the amendments (and Standard) provide some guidance and assistance to coal mine employers on the issue of drug testing at mine sites, there remains ongoing uncertainty where testing of other types of impairment is desired or required and majority agreement has not been reached.

Like many parts of Australia, Queensland has specific OHS legislation for the coal mining industry - the Coal Mining Safety and Health Act 1999 and the Coal Mining Safety and Health Regulation 2001.

Relevant to the recent amendments, the Regulations require coal mines to have a documented safety and health management system on controlling risks at the mine associated with "personal fatigue and other physical and psychological impairment, and drugs".

For employers operating in the industry, they would be well aware of the notoriety of this provision. This is because, historically, the Regulations required that the criteria for assessing an impairment (for example, in the case of impairment by drugs, the type of testing such as saliva, urine or blood testing and how it is to be applied) must have had the majority approval of the workforce.

Perhaps predictably, many a site senior executive has found themselves in the unenviable position of being unable to reach majority agreement, and without any fall-back in the Regulations to rely on, also unable to meet their statutory obligations.

Regulatory amendments

The Regulations were amended, on 20 April and 19 October 2007 respectively, to clarify the position where the required agreement could not be reached, at least in relation to drug testing.

Significantly, the amendments provide that, if the site senior executive has consulted with the workforce and made a reasonable attempt to reach majority agreement on the criteria for assessment for drugs (to be included in the safety and health management system), then, in the absence of majority agreement, a "recognised standard" will apply until agreement is reached.

The regulatory amendment did not, however, address the issue of personal fatigue, and other physical and psychological impairments, meaning that the site senior executive must (still) achieve majority agreement with the workforce in respect of the systems implemented in the management of these risks.

Recognised standard

Under the Act, a Minister may make a recognised standard "stating ways to achieve an acceptable level of risk to persons arising out of coal mining operations". Relevant to drug testing, Recognised Standard 07 Criteria for the assessment of drugs in coal mines was gazetted on 1 June 2007.

The Standard is expressed to apply to workers and visitors at mines where an agreement on the criteria for assessment for drugs has not been made with the majority of workers at the mine as required under section 42(7) of the Regulations.

The assessment criteria under the Standard include:

• urine testing (for pre-engagement or following a positive saliva test if confirmation is required by the person)
• swab screening or saliva testing (for random testing, after an accident/incident, on suspicion or on return to work following a positive test result); and
• blood analysis (as deemed necessary on hospitalisation after an accident/incident or following a positive saliva test if confirmation is required by the person).

Importantly, the Standard:

• requires that the results of any assessments should not be disclosed to any accident/incident investigators until after the preliminary investigation has been completed; and
• does not specify the disciplinary consequences where there is evidence of impairment. Rather, this is left to site policy.

Conclusion

Although the amendments (and Standard) provide some guidance and assistance to coal mine employers on the issue of drug testing at mine sites, there remains ongoing uncertainty where testing of other types of impairment is desired or required and majority agreement has not been reached. This could include, for example, where there may be a concern about a person's actual or suspected physical or psychological injury and how, if at all, it may impact upon the person's ability to fulfil the inherent requirements of their role.

In these circumstances, reliance on well drafted contracts of employment and/or industrial instruments that include and provide enforceability to testing regimes provide the only avenue.

Thanks to Christy Miller and Melinda Shinkel for their help in writing this article.

For further information, please contact Hedy Cray.