“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ACI Operations Pty Ltd T/A O-I Melbourne

[2015] FWC 3162

[2015] FWC 3162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
ACI Operations Pty Ltd T/A O-I Melbourne
(C2014/7000)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 MAY 2015

Alleged dispute concerning the implementation of workplace drug and alcohol policy.

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) are in dispute with ACI Operations Pty Ltd (ACI) over the proposed drug and alcohol policy.

[2] The O-I Melbourne - Maintenance Workplace Agreement 2013 (the Agreement) provides at clause 48 for the development of a workplace drug and alcohol policy. It provides:

“The parties to this Agreement identify and agree that due to the nature of the task Workplace Drug and Alcohol management is necessary to ensure the integrity of an employee’s safety at work. A Workplace Drug and Alcohol Policy and Procedure shall be negotiated, agreed, implemented and observed within the first 12 months of this agreement.”

[3] The AWMU filed an application for the Fair Work Commission to deal with a dispute because it submitted that ACI was implementing a policy without AMWU agreement.

[4] In the Agreement, the parties include the AWMU and CEPU as well as employees and ACI.

[5] Conciliation conferences were held in November 2014 and April 2015 but the dispute was not resolved. In accordance with clause 14 of the Agreement, the matter was referred to arbitration. There is no dispute that the dispute resolution procedure was complied with.

[6] The parties initially agreed that the question to be determined was “Does the Agreement require the agreement of the parties to a workplace drug and alcohol policy and procedure?”

[7] In its submissions, however, the AMWU conceded that clause 48 of the Agreement did not operate to give either of the parties a veto or licence over a workplace drug and alcohol policy and procedure.

[8] It submitted that the parties have not been able to reach agreement as there was one outstanding issue to be resolved. It submitted that the Commission was required to decide the consequences of a positive drug or alcohol test in certain circumstances. It was not disputed that the Commission could resolve this outstanding issue by arbitration.

What was the dispute?

[9] The parties are in dispute about the consequences for an employee who returns a first positive test.

[10] This is the evidence of Mr Hynds, the AMWU organiser for the site 1 and Ms Karen Zammit, the Human Resources Manager.2

The proposals

[11] ACI propose the following:

“Whilst the first positive test result will generally result in a caution, each case will be treated on its own merit and other disciplinary action may also be taken following a confirmed positive result in accordance with company policy or the relevant EBA.”

[12] The AMWU proposed to replace this clause with:

“The first positive random test will be referred to the show cause group.”

The Evidence

[13] Mr Hynds gave evidence that “where there was no obvious impairment, yet there was a positive test, the union wanted the focus to be on working through the issues to prevent a recurrence, but ACI wanted to keep disciplinary options on the table.” 3

[14] Mr Hynds supported this position by stating that in cases of a positive test but no impairment, discipline was not appropriate. The worker should be “given the skills and information to correct his behaviour.” 4

[15] Ms Zammit, the Human Resources Manager, gave evidence that ACI rejected a proposal that all first positive tests should result in a warning. 5 Ms Zammit noted that if the AMWU thought an employee was treated unfairly, it could raise this with ACI and outside of ACI. She said that the policy provides that the employee is entitled to have a support person with them. Further, she said this issue could be considered as part of the six month review.6

[16] Ms Zammit gave evidence opposing the AMWU’s proposal. It was her uncontested evidence that it is not unusual for individual employees to approach her on a discrete basis about drug and alcohol matters. 7 It was her evidence that ACI’s approach protected an employee’s privacy.

[17] She also expressed concern that the members of the assessment team “would struggle to embrace a role and purpose that is directed to the implementation and application of a policy to ensure health and safety of all in the workplace.” 8 She was also concerned that the “them and us” culture that exists at the plant would have “the potential to undermine the entire policy and bring it into disrepute and threaten the safety of the plant.”9

[18] It was her uncontested evidence that where the policy has operated at other ACI sites, no formal disciplinary action had been taken for a positive test. 10

The AMWU’s submissions

[19] The AMWU proposes that the show cause group determine the disciplinary action to be taken if an employee returns a first positive test.

[20] The show cause group is established under clause six of the policy. In certain circumstances, an employee may be subjected to show/due course testing as opposed to random testing.

[21] The decision to require an employee to undergo show/due course testing is made by an Assessment Team. The Assessment Team is made up of a minimum of two employees, one from each category. The categories being:

• Manager/supervisor or their nominee;



• Employee representative; and,



• Where available, a Health and Safety Representative (HSR) from that designated work group or an agreed (by manager and delegate) third person.

[22] If there is a consensus of the Assessment Team that the suspected person may be affected by drugs or alcohol, the suspected person will be required to undergo drug and alcohol testing.

[23] It is to this group that the AMWU proposes that all first positive tests be referred. The Assessment Team would decide the consequences for the employee. It was submitted that the consequences must be consistent with the policy. 11

[24] The AMWU submitted that this would result in a health and welfare approach to issues of drug and alcohol use being adopted rather than a disciplinary approach.

[25] It was submitted that the show cause group would be required to protect the privacy of those individuals concerned.

[26] ACI submitted that the AMWU’s proposal would breach the Privacy Act 1988 (Cth). It submitted that it cannot be assumed that employees who test positive wish their personal information to be shared with a committee of their colleagues, peers and/or union representatives. 12

[27] ACI submitted that there may be confidentiality breaches and the convening of the group will give rise to gossip. 13

[28] ACI submitted that the policy has a number of steps which are directed at supporting an employee in managing drug and alcohol issues. 14 It was submitted that convening a show cause group would result in unnecessary cost and delay.15

[29] It was submitted that the members of the show cause group are not able to make an expert assessment of an employee’s level of impairment. If the show cause group assessed someone as fit to work and the employee subsequently had an accident then issues as to liability under health and safety legislation would arise. 16

[30] It submitted that a dispute over any proposed disciplinary action could be resolved through the dispute resolution procedure in the Agreement. 17

[31] ACI submitted that the AMWU was concerned about events that are unlikely to occur. ACI acknowledged that there was a lack of trust between the parties but submitted that since 2014, there has only been one maintenance person dismissed for a significant safety breach. In addition, a written warning was given to an AMWU member. Another warning was given to an ETU member for a safety breach. An accident involving an AMWU member was investigated and no disciplinary action was taken. There were no disputes about these matters.

Conclusion

[32] The proposed policy starts from the premise that employees should be fit for work. It provides a framework for testing, as well as guidelines for education, rehabilitation and counselling and potential discipline arising from drug and alcohol testing.

[33] It provides for a number of safeguards. For example, at this site, testing devices are available to employees in the car park to enable employees to self test before reporting for work. 18

[34] The policy provides for a second test for an employee who records a positive first test for alcohol.

[35] An unclear test (a non negative) result for drugs will result in a laboratory test to determine if it is a positive or negative result.

[36] If there is a first positive result, the policy provides for an investigation and discussion. The focus of the policy is not discipline.

[37] The policy provides that for first positive result the following will occur:

“The individual will continue to be paid during the initial suspension period. A meeting with the immediate supervisor, HR Manager, and employee nominated representative where requested (e.g. union representative) will be arranged to review the results and investigate/discuss:

• details relating to drug and alcohol use



• attempt to find the cause of the situation



• the standard of performance required



• any workplace or other factors contributing to the result and poor work performance



• professional counselling (Employee Assistance Program) for personal or workplace factors



• increased individual testing program based on legitimate grounds



• timeframe to achieve satisfactory performance and a negative test result



• use of leave entitlements for the period away from work



• offer rehabilitation support program



• Whilst the first positive test result will generally result in a caution, each case will be treated on its own merit and other disciplinary action may also be taken following a confirmed positive result in accordance with company policy or the relevant EBA.

O-I will arrange for the employee to undertake a test were they need to achieve a negative result prior to returning to duties.” 19

[38] The Agreement provides at clause 43 for a detailed disciplinary policy. That policy makes it clear that ACI’s right to summary dismiss an employee is retained for serious or wilful misconduct. One example of serious misconduct is drunkenness.

[39] I am not persuaded to adopt the AMWU’s proposal.

[40] The AMWU’s proposal would have the show cause group decide the level of discipline to be applied in all cases of a first positive test.

[41] Mr Hynd’s evidence discloses a concern that an employee may receive more than a caution on a first positive test in circumstances where the employee does not display an obvious impairment.

[42] However, the proposal put forward by the AMWU does more than remedy this concern. It makes the show cause group the arbitrator of the disciplinary outcome in all cases of a first positive test. The AMWU’s proposal does not even provide that a first positive result will generally result in a caution. The AMWU process would apply even where an employee has returned first positive test as a result of a show cause test or a test that occurred as a result of a serious or potentially serious incident.

[43] I do not consider that the show cause group is an appropriate body to determine the disciplinary response to a first positive test. I accept the submissions of ACI that an employee’s personal circumstances should not be disclosed to his or her colleagues without his or her consent. The discussion that occurs prior to the decision on what is an appropriate disciplinary response may involve disclosure of significant personal issues. I consider that the deeply personal nature of many of the reasons individuals misuse drugs and alcohol should not be required to be disclosed to more people than is necessary. I do not suggest that members of the show cause group would treat any information without confidentially.

[44] I do not accept the submissions of the AMWU that its proposal provides for a health and welfare approach to be adopted as opposed to a disciplinary approach. All the AMWU’s proposal does is change the decision maker from ACI to the show cause group. Given the show cause group operates on a consensus, the AMWU’s proposal provides for a veto power on any disciplinary action being taken for a first positive test.

[45] The real dispute between the parties is whether there are circumstances where an employee should receive more than a caution for a first positive test and who should make that decision.

[46] I accept that I should not interfere with ACI’s rights to decide the level of discipline without a substantive reason. The parties to the Agreement have agreed on a disciplinary process. It does not give the power of veto over the disciplinary outcomes to employees or their representatives. I do not see why a breach of the drug and alcohol policy should be treated differently.

[47] The parties have reserved a role for the dispute procedure if an employee disagrees with the outcome of the disciplinary procedure. I do not consider I should further fetter ACI’s right to determine the appropriate level of discipline to be imposed if an employee returns a first positive test.

[48] I accept ACI’s submissions that there may be circumstances where a first positive test may warrant more than a counselling. However, I doubt that there are cases where, without more, a first positive test would result in summary dismissal.

[49] I accept that there is a lack of trust that the policy will be applied fairly. However, there was no evidence put before me to support a finding that ACI is likely to apply this policy unfairly. The Agreement sets out a fair disciplinary policy which has reserved for ACI the right to decide the appropriate level of discipline, subject to the dispute resolution procedure. No evidence was called to support a finding that ACI has in the past used its disciplinary procedures unfairly.

[50] There is no evidence that at other sites where the policy applies, ACI has used positive results to discipline employees unfairly.

[51] Accordingly, I do not endorse the amendment to the policy proposed by the AMWU.

[52] The parties have been able to negotiate a drug and alcohol policy. I note Mr Hynds comments that the negotiations were positive and constructive and that this was unusual because industrial relations can be tough at ACI. That the parties have come so far deserves acknowledgement.

[53] The policy is subject to review. The parties will be at liberty to report back to the Commission about how the policy has been applied and of course either party is able to refer any dispute about the application of the policy to the Commission for resolution.

DEPUTY PRESIDENT

Appearances:

Mr B Terzic for the Applicant.

Ms S Zeitz for the Respondent.

Hearing details:

2015.

Melbourne:

30 April.

 1 Exhibit A1 at [11].

 2   Exhibit R1 at attachment KZ7.

 3   Ibid.

 4 Ibid at [12].

 5 Exhibit R1 at [19].

 6 Ibid at [32].

 7 Ibid at [40].

 8 Ibid at [44].

 9   Ibid.

 10   Ibid at [50]-[52].

 11   Clause 7 of the proposed policy.

 12 Submission of ACI at [16].

 13 Ibid at [17].

 14 Ibid at [18].

 15 Ibid at [19].

 16 Ibid at [20].

 17 Ibid at [22].

 18   Clause 5 of the proposed policy.

 19   Clause 8 of the proposed policy.

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