Updating your Drug & Alcohol Policy? Don’t skip the consultation
Drug and alcohol testing is one of those workplace issues where the safety case is obvious and the legal path to getting there is not. The recent Opal Packaging litigation is a useful reminder that even a well-intentioned, safety-focused change to a testing regime can come unstuck if the consultation isn’t done properly.
What happened at Opal
Opal Packaging wanted to update its Alcohol and Other Drugs (AOD) policy. The proposed changes were unremarkable on their face. They included removing self-testing breath alcohol units, adjusting random testing procedures, and updating how non-negative results for prescription medications were managed.
The AMWU disputed the changes, arguing Opal hadn’t met its consultation obligations under the Enterprise Agreement and the model WHS Act. The Fair Work Commission agreed. Deputy President Masson found that while the proposed changes had “a sound rationale”, the Company’s direction to comply with them wasn’t reasonable because employees and their union hadn’t been given proper information or a genuine opportunity to influence the change.
The dispute then moved to the Federal Court on a separate question about how dispute resolution “status quo” clauses operate. The Court ultimately allowed Opal’s changes to proceed, but the consultation failure finding still stands as a warning to employers.
The lesson is bigger than testing
Drug and alcohol testing happens to be the trigger here, but the same principle applies to any significant change to working conditions, including surveillance policies, shift structures, performance management frameworks and dress codes. If your Enterprise Agreement, award or WHS legislation requires consultation, then consultation is not a courtesy. It’s a precondition.
And consultation isn’t just sending a memo. The Commission has been consistent on what genuine consultation requires:
- Provide employees and their representatives with enough information to understand what’s changing and why.
- Give them a real opportunity to express their views, meaning enough time and a genuine forum, not a one-week comment window on a finalised policy.
- Genuinely consider what they raise. You don’t have to agree, but you do have to engage.
- Document the process. If you can’t evidence consultation, it didn’t happen, as far as a tribunal is concerned.
If you’re reviewing your testing policy this year
Whether you’re tightening up a policy, introducing testing for the first time, or responding to a specific incident, the steps are the same:
Check what consultation obligations apply. This means your Enterprise Agreement (if you have one), any modern award provisions, and the consultation requirements under the WHS Act in your jurisdiction. In WA, that’s the Work Health and Safety Act 2020.
Build the safety case. Why is testing necessary in this workplace, in these roles? Random testing in a warehouse or transport context is easier to justify than random testing in a low-risk office environment.
Set out the procedure clearly. Who tests, when, how, what happens with a non-negative result, what support is available for an employee with a positive result, and how prescription medication is handled. Vague procedures are the second biggest source of disputes after consultation failures.
Consult properly. Share the draft, give people time, run a meeting or two, and write down what you heard and how you responded. Even where you don’t change the policy, evidence of having considered the feedback is what gets you across the line.
Train your supervisors. Most testing disputes don’t start with the policy. They start with how a particular test was conducted on a particular day.
My take
Opal isn’t a cautionary tale about drug testing. It’s a cautionary tale about process. The Company had a sensible policy update and a real safety rationale, and they still ended up in the Commission because consultation was treated as a formality rather than a substantive requirement.
For most small and medium employers, the lesson is simple. A good policy isn’t enough. The way you introduce it, and the way you evidence that introduction, matters just as much.
If you’re developing or refreshing an AOD policy, HR Automate has a template policy and procedure pair you can adapt to your workplace, along with consultation documentation tools that help you evidence the process if it’s ever questioned.
Principal, HR Automate. Senior HR and industrial relations practitioner.