Workplace Relations Insights

30 June 2011

Synthetic drugs a Kronic issue for employers

By Saul Harben, Shae McCartney, Steve Bowler and Tim Nielsen.

Key Points:
Although Kronic may still be legal in some jurisdictions for the time being, employers should not underestimate the possible ramifications of synthetic drug use for their workplace.

The recent media coverage of the increasing use of synthetic cannabis or "Kronic" in Australian workforces has highlighted the importance of effective and flexible drug and alcohol policies and procedures.

New drugs such as Kronic, which may be legal and may not show up in established testing procedures, can potentially affect employees' fitness for work and create issues for employers in the management of their fitness for work policies and procedures.

What are these drugs?

Synthetic cannabis has been legally sold in Australia under brand names such as Kronic, Kaos and Voodoo for around four years. Kronic and other synthetic cannabis products do not contain THC, the main psychoactive compound in regular cannabis. As a result, Kronic use is not detected by the usual drug tests aimed at detecting traditional cannabis. Further, in some states, Kronic is not currently illegal, resulting in the perception by many employees that it is more acceptable and less dangerous than illicit drugs.

Despite not containing THC, synthetic cannabis can be many times stronger than traditional cannabis and can create the same types of impairment including euphoria, slowed reflexes, hallucinations, irregular heartbeats, anxiety, depression and even death. Kronic has been banned in 16 countries around the world.

Recent statistics from the WA Government's laboratory, ChemCentre, show that 10% of the workplace samples it has been provided with have tested positive to synthetic cannabis use. Results from some worksites returned 30% positive results. Mine operators in Queensland and New South Wales are also becoming increasingly concerned about Kronic use on their sites.

What are governments doing about his?

Resource industry employers have led the recent charge against synthetic drug use with the result that synthetic cannabinoids are now illegal in WA and South Australia..

The Queensland Government has also announced it is moving to ban substances "intended to have a substantially similar pharmacological effect as known drugs".

Most recently, the New South Wales Government has announced that Kronic and other forms of synthetic cannabis will be banned from July 2011.

What are the specific legal issues for the resources sector?

In Queensland under the Coal Mining Safety and Health Act 1999, mine sites are required to have a Safety and Health Management System (SHMS). Under the Act's regulations, the SHMS is required to provide for controlling risks associated with the "improper use of drugs". "Drugs" are defined in the Act's supporting standards as any substance which alters the body's functions physically or psychologically.

In establishing the criteria for the assessment of the improper use of drugs, there are strict processes that must be complied with. These processes may require consultation with the workforce in order to amend established procedures or to introduce new ones. Employers need to be aware of these requirements in developing their responses to issues such as synthetic cannabis use.

In Western Australia, all matters relating to occupational health and safety at mine sites are governed by the Mines Safety and Inspection Act 1994 (MSI Act), which is regulated by the Safety Division of the Department of Mines and Petroleum.

The MSI Act does not require alcohol or drug testing on mine sites. However, the Mines Safety and Inspection Regulations 1995 (MSI Regulations) provides that a person must not be in or on any mine while they are adversely affected by intoxicating liquor or drugs, or consume or have any deleterious drug in their possession without the knowledge and permission of the mine manager. A breach of this requirement carries a $5,000 penalty for an employee if it is their first offence.

With the banning of Kronic and other forms of synthetic cannabis in WA, any use of Kronic by employees at WA mine sites will now constitute a criminal offence, as well as a clear breach of the MSI Regulations. However, whether any new legal drugs that may emerge will also fall within the scope of the MSI Regulations remains open to question.

Regardless of the regulatory context, most mine sites have stringent drug and alcohol and drug testing regimes in place, and a zero tolerance approach to the use of drugs onsite. Several major employers in the resources industry have already banned Kronic at their mines. While testing for Kronic use has been difficult, employers in the resources industry are quickly developing strategies to deal with Kronic use onsite, such as forwarding samples to those organisations that have already developed the technology to detect the substance.

Employers: What should you do now?

Jurisdictions throughout Australia are currently considering their response to increasing synthetic drug use. As noted above, synthetic cannabis is now banned in WA and South Australia, will be banned in NSW from July, and similar moves are afoot in Queensland. Other states are likely to follow a similar path. However, in the meantime, given the potential workplace safety risks arising from use of Kronic and other synthetic drugs, particularly in high-risk industries such as mining, employers should already be taking steps to address the possible use of these drugs by their employees.

One important step employers should take is to review their current drug and alcohol policies. Regardless of regulatory requirements, any changes to workplace policies and procedures should be made in consultation with employees and OHS representatives. As part of this process, employers may also wish to raise awareness of the risks associated with legal drug use with their workforce in order to challenge the perception employees may have that because it is legal, it is not harmful or dangerous.

In high-risk industries, it may be advisable to impose a total ban on drugs such as Kronic on safety grounds, as some employers have already done. Employees should also be clearly informed that regardless of the legality or otherwise of particular drugs, anything that impairs their fitness for work may be the subject to disciplinary sanctions based on the employer's occupational health and safety obligations to provide a safe workplace.

Although it may still be legal in some jurisdictions for the time being, employers should not underestimate the possible ramifications of employees using Kronic and other synthetic drugs for their workplace. We recommend that any employers reviewing their drug and alcohol policies in light of the issues covered in this article seek professional advice.

 

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For further information, please contact Saul Harben and Shae McCartney.

Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states or territories.