22 Sep 2015

Government's Building Code now requires drug and alcohol testing policies on its construction sites

New amendments to the Building Code 2013 will require contractors on taxpayer-funded construction sites to have a comprehensive policy for mandatory drug and alcohol testing by 16 October 2015.

Announcing the changes, former Employment Minister Eric Abetz said, “Safety is a paramount consideration on construction sites.  It is simply an unacceptable risk to the health and safety of employees and the public to have workers affected by drugs or alcohol on construction sites.”  

What the new fitness for work policy must include

From 16 October 2015, in addition to the requirements they already have under the Building Code, building contractors or building industry participants subject to the Building Code 2013 undertaking building work for which:

  • the value of the Commonwealth’s contribution to the project that includes the building work is at least $5,000,000 and represents at least 50% of the total construction project value; or
  • the Commonwealth’s contribution to the project that includes the building work is at least $10,000,000 (irrespective of its proportion of the total construction project value),

must include in its management plan for Work Health Safety & Rehabilitation a fitness for work policy to manage alcohol and other drugs in the workplace that applies to all persons engaged to perform building work on a project.

The fitness for work policy must include, as a minimum, the following:

  • how those on site will be required to comply with the policy;
  • the use of an objective medical testing method to detect the presence of drugs or alcohol;
  • the requirement that certain substances are tested for (as a minimum);
  • that a person returning a positive result will be deemed not fit for work (zero tolerance);
  • that a person returning a positive result will be prevented from working until they can prove they are fit to return to work;
  • minimum frequent and periodic testing;
  • procedures for selection of personnel to be tested (staged selection or random);
  • procedures for targeted testing; and
  • counselling and assistance provided to workers attending work affected by drugs or alcohol.

How will the changes to the Building Code be enforced?

Fair Work Building and Construction will be responsible for auditing building contractors to ensure those subject to the Building Code have in place a compliant fitness for work policy.

Under the Building Code, Inspectors may generally exercise any of their compliance powers under the Fair Work Act to ensure compliance with the Building Code such as commencing litigation or imposing sanctions.

Sanctions that may be imposed against companies for breaching the Building Code include:

  • a formal warning.
  • exclusion from tendering opportunities for a fixed period of time.
  • a reduction of tendering opportunities for a fixed period of time for projects over a certain value or in a specified area or region.

Getting your drugs and alcohol testing policy in place

The new requirements under the Building Code 2013 to test for the presence of alcohol and drugs have been modelled on those that previously applied under the former Victorian Construction Code, so many contractors will already be familiar with them, or indeed have a near-compliant policy in place.

It's also consistent with the message coming from the Full Bench of the Fair Work Commission: zero tolerance policies in high-risk workplaces should be accompanied by support and counselling for employees who return a positive test result.

That means that your policy should be carefully crafted to ensure both safety and fairness.

While the amendments do not apply to all building works, it would be considered best practice to adopt these requirements in any building works subject to the Building Code, irrespective of the level of the Commonwealth funding.

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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 communication. Persons listed may not be admitted in all States and Territories.