Rooty Hill RSL Club Limited

[2014] FWCA 2191

[2014] FWCA 2191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Rooty Hill RSL Club Limited
(AG2014/3880)

ROOTY HILL RSL CLUB ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 9 APRIL 2014

Application for approval of a single enterprise agreement - Union objections to approval - whether Agreement meets the Better Off Overall Test (BOOT) - absence of certain penalty rates - employees not worse off - evidence supports a finding that the Agreement meets the BOOT - inclusion of drug and alcohol testing - whether contrary to ss 55(4), 97 and 107 of the Fair Work Act 2009 - drug and alcohol testing not a detriment - no breach of the Act - Agreement approved.

[1] Rooty Hill RSL Club Ltd (the ‘Club’ or the ‘applicant’) has negotiated a new single enterprise agreement, the Rooty Hill RSL Club Enterprise Agreement 2014 (the ‘Agreement’) with United Voice (the ‘Union’) under Part 2-4 of the Fair Work Act 2009 (the ‘Act’). The Agreement is to cover 421 of its employees engaged by the Club in various gaming, restaurant and bistro, sporting and recreational, maintenance and cleaning, bar, administrative, team leader and supervisor duties, except for management and executive level employees. There was no dispute that the employees would otherwise be covered by the Registered and Licensed Clubs Award 2010 [MA000058] (the ‘Award’).

[2] The employees were last notified of their representational rights on 19 September 2013 (s 173 of the Act) and voting for the approval of the Agreement was conducted by secret ballot between 13-19 February 2014. The result of the ballot was 234 employees in favour of approving the Agreement and 158 employees against approval. I note that an earlier vote for approval of the Agreement taken from 27-28 December 2013, was defeated by a majority of the employees who voted on that occasion.

[3] On 4 March 2014, the Club filed an application, pursuant to s 185 of the Act, for approval of the Agreement, together with an Employer’s Statutory Declaration in relation to the Agreement (Form F17), a Statutory Declaration of United Voice in respect to the Agreement (Form F18) and a copy of the proposed Agreement.

[4] At this point, I am satisfied that there are no concerns as to the Club’s compliance with all of the statutory pre-approval process requirements as set out in ss 172-185 of the Act, although I note that the result of the ballot for approval of the Agreement was hardly a ringing endorsement of its terms; less than 60% of the employees having voted in favour of the Agreement. Perhaps this was a result of the Union actively campaigning against the Agreement’s approval. However, the size of the voting majority is not a relevant consideration in the pre-approval process. S 182 of the Act merely requires a simple majority of those employees who cast a valid vote in the ballot agreeing to approve the Agreement. It later emerged in the evidence that the current number of employees to be covered by the Agreement is 471, accounted for by new employees engaged by the Club since the vote was taken. Again, however, this is irrelevant for the purposes of the approval process, as s 181 makes clear. Accordingly, I am satisfied that the Agreement was validly made.

[5] The application for approval of the Agreement was listed for hearing on 11 March 2014, with Mr R Marshall and Mr T Brett, Solicitors, FCB Workplace Law, appearing for the Club with permission and Mr M Dusevic for the Union. The Union’s Form F18 had raised two matters which, it submitted, prevented the Commission from approving the Agreement; namely:

1. That the Agreement does not pass the Better Off Overall Test (BOOT), as required by s 193 of the Act, in that it does not provide for the payment of Late and Early Work penalties and Broken Shift Penalties ( c 29.4 of the Agreement), as provided for in the Award; and

2. cl 37.4 of the Agreement permits the employer to direct an employee to undertake a drug/alcohol test. This is a detriment when compared to the National Employment Standards (NES); s 55(4) of the Act, and inconsistent with ss 97 and 107 of the Act.

[6] In light of the Union’s objections, I listed the matter for further hearing and directed the parties to file and serve any evidence upon which they relied, along with an outline of submissions.

THE EVIDENCE

[7] Ms Paula Coates is the Club’s Human Resources Manager. Ms Coates deposed that in determining whether the Agreement passed the BOOT, the Club assessed the actual rostered hours of employees in various classifications. These rosters were annexed to her statement. In recognising that the Agreement does not provide for the Late and Early Work Penalties and the Broken Shift allowance, Ms Coates specifically identified the actual rosters of the 39 employees across all Departments, who mainly work nights and who worked the greatest number of hours between 7:00pm and 7:00am, Monday to Friday. A BOOT analysis spreadsheet, filed with the Commission, disclosed that all these employees would receive higher wages and allowances under the Agreement compared to the Award.

[8] In any event, Ms Coates observed that the Club does not engage, or intend to engage, any employee who works solely between 7:00pm and 7:00am Monday to Friday. Moreover, even those employees who work significant hours between 7:00pm and 7:00am also work ordinary hours between 7:00am and 7:00pm Monday to Friday and at weekends. As the Agreement provides for higher rates of pay in both these circumstances, together with a meal provided by the Club and a shoe allowance, Ms Coates believed the employees are still ‘better off’ overall under the Agreement than under the Award.

[9] In addition, Ms Coates said that the Award does not provide for an employer-provided meal or a meal allowance of $9.71, a shoe allowance of $3.94 a week for full and part-time employees and a shoe allowance of 61c per engagement for casuals, up to a maximum of $3.94 per week. The value of these benefits was taken into account in the BOOT analysis.

[10] In calculating the value of the meal provided by the Club to employees working a shift of five hours or more, Ms Coates assessed the cost to the Club was $554,000 per annum. Dividing that figure by the number of employees, by the weeks worked and then dividing that figure by five (shifts), results in an amount of $4.90 each time an employee works five or more hours per shift. Ms Coates said that this amount was taken into account in the BOOT analysis, but only for those employees who worked the requisite number of hours.

[11] As to the drug and alcohol testing provision, Ms Coates deposed that it was intended to ensure the safety of employees, guests and visitors to the Club. It does not diminish or hinder an employee’s right to access personal/carer’s leave. Three considerations arise, namely:

(a) the testing is not random;

(b) it will only occur when the Club suspects, on reasonable grounds, that the employee may be impaired by the use of drugs or alcohol; and

(c) it will require the approval of the Human Resources Department.

[12] Ms Coates pointed out that the Club now delivers a wider range of services to its members and the community, in addition to traditional services such as food and beverage and gaming; it is involved in a gym, the Novotel Hotel and the Sydney Gymnastics and Aquatic Centre (SGAC). Employees of SGAC train and instruct some 2,000 children a week in gyms and swimming pools, using sporting equipment. The Club is very conscious of the risks to children if exposed to employees who are impaired by drugs or alcohol.

[13] Ms Coates noted that in the provision of food and beverage services, employees work with high risk equipment and chemicals, including knives, naked flames, ovens and cleaning machinery in kitchens and storage rooms.

[14] In addition, the Club has a duty to ensure the Responsible Service of Alcohol (RSA). As part of its RSA obligations, the Club cannot permit an employee, impaired by the effects of alcohol or drugs, to serve alcoholic beverages to customers. As part of its gaming responsibilities, the Club must ensure employees are not impaired by alcohol or drugs. Ms Coates indicated that the Club’s maintenance and cleaning functions also expose employees and patrons to risks associated with the use of heavy equipment and machinery, power tools, cleaning equipment and hazardous chemicals.

[15] In cross examination, Ms Coates clarified that the 39 employees, whose rosters had been provided to the Commission, are the only employees across the Club, who mainly work nights. These employees work the same regular hours each week. These are other employees who work three weeks of day shift and then a week of night shift.

[16] Ms Coates added that both she and FCB Workplace Lawyers had analysed all of the calculations. Mr Dusevic claimed that on one of the part time employees’ calculations there is a detriment of $15.92 between the Agreement and the Award. Ms Coates explained this employee’s shift as follows:

‘Yes?---So he – on a Monday morning he starts at 6 am.

Yes?---Then Tuesday nine, Wednesday nine and Thursday nine – oh, 3 am. On the Tuesday, Wednesday and Thursday he also would receive the meal provision as well. So Monday morning he would get nightshift penalty from 6 am til 7 am. On a Tuesday he would get it from 3 am through til seven. Same again Wednesday and same again Thursday.

And when you have here on Friday, Saturday, Sunday, “RDL” it’s not an RDL in the relevant sense. It’s just his - - -?---No. It’s his normal days off. Yes.

It’s his days off according to his preferred hours?---Yes.

And he works these continually?---Yes. Same shifts every week.’

[17] She said on Tuesday, Wednesday and Thursday, the employee received the meal provision. He has the same roster every week with Friday, Saturday and Sunday off. Ms Coates believed that very few employees bring their own meals as the Club has a fully catered hot and cold staff canteen.

SUBMISSIONS

For the Club

[18] Mr Marshall set out the Act’s provisions concerning the BOOT (s 193) and relied on the evidence of Ms Coates in which she had said the Club had assessed the rosters of these employees who routinely worked between the hours of 7:00pm and 7:00am and those who worked broken shifts. A comparison was made between what the employees would receive under the Agreement compared to the Award. Mr Marshall submitted that, in no case, would any affected employee receive less than $3.00 per week, than they would otherwise receive under the Award, and the $3.00 a week ‘better off’ only applied to one employee. In addition, the following benefits need to be taken into account:

(a) Higher rates of pay for ordinary hours worked on Monday to Friday and Saturdays and Sundays;

(b) the provision of a shoe allowance ($3.94 per week, per clause 34.3) not found in the Award; and

(c) the provision of a free meal or meal allowance ($9.71) to all employees who work a shift of five continuous hours or more. There is no equivalent provision in the Award; See: Mounties Group Western Sites Frontline Enterprise Agreement 2012 [2012] FWAA 10224 and The Star Enterprise Agreement 2013 [2013] FWCA 3556.

[19] In oral submissions, Mr Marshall relied on Ms Coates’ evidence which he said could not have been clearer. The Club had squarely addressed the group of employees the Union had claimed did not meet the BOOT and, in no case, were they ‘worse off’ when compared to the Award. Calculations of the meal provided had only been made where the employee was entitled to it. All of the calculations and formulae had been set out in an Excel spreadsheet, which Mr Marshall noted the Union had had for three weeks.

[20] Mr Marshall highlighted the various authorities of the Commission which have dealt with drug and alcohol testing as a workplace health and safety issue. In this case, it was not random testing. as there were additional controls in place. In any event, this matter is not a matter for the BOOT.

[21] Mr Marshall put that notwithstanding the exclusion of the named penalties, all individual rosters assessed by the Club reveal that employees would receive higher wages and allowances under the Agreement compared to the Award. Mr Marshall noted that no employee works solely during the times of 7:00pm and 7:00am, Monday to Friday, which was the hypothetical example cited by the Union. In addition to the above, the Club submitted that the following terms and conditions in the Agreement are more ‘beneficial’ terms than the Award:

● Longer minimum engagements for casual employees;
● Laundry allowance;
● Safe Family Support Leave;
● Blood donor leave;
● Repatriation leave;
● More generous Tool Allowance;
● Enhanced casual conversion clause;
● Entitlement to statement of service;
● Enhanced redundancy entitlements;
● Additional public holiday; and
● More generous penalty rates for work on Christmas Day.

[22] Mr Marshall submitted that cl 37.4 of the Agreement, dealing with drug and alcohol testing is not an issue relevant to assessing the BOOT. Nor is it a provision detrimental to an employee according to the NES. He put that the Commission is not precluded from approving an Agreement which expressly permits an employer to test employees for drug and alcohol impairment and where the testing is by oral saliva testing. This form of testing is a reasonable and lawful direction of the employer; See: Briggs v AWH Pty Ltd [2013] FWCFB 3316 (‘Briggs’).

[23] Mr Marshall argued that the inclusion of cl 37.4 is justified because of the Club’s safety considerations, the fact that it is ‘cause-based’ testing (as distinct to random testing) and that it requires the HR Department’s approval.

[24] Mr Marshall said that the Club’s health and safety obligations under the Work Health and Safety Act 2011 (NSW) are discharged by doing what is ‘reasonably practicable’ to eliminate or minimise work health and safety risks to employees and patrons of the Club (See: Cl 19 of that Act)

For the Union

[25] Mr Dusevic also referred to the BOOT provisions of the Act and the penalty clauses in the Award which are not dealt with in the Agreement. Mr Dusevic relied on a comparative document which set out the base rates of pay under the Agreement (including the 2% increase when the Agreement is approved) and the base rates of pay under the Award. He then calculated the inclusion of the early and late shift penalties to arrive at an actual hourly rate difference and percentage difference between the Award and the Agreement rates.

[26] Mr Dusevic claimed that the Union’s calculations disclosed that all Levels 2-7, the percentage difference was between -1.28% (Level 3B) and -3.73% (Level 4) for employees who work between the hours of 7:00pm to midnight. For employees who work solely between midnight and 7:00am, the differences are between -3.38% (Introductory Level) and -7.64% (Level 3A).

[27] Mr Dusevic believed the negative differentials will be exacerbated by the Commission’s Minimum Wage Review decision on 1 July 2014 (assuming an increase is awarded). The Union put that the Agreement does not pass the BOOT as each prospective award covered employee would not be ‘better off’ overall if the Agreement was to be applied.

[28] In oral submissions, Mr Dusevic said that in the case of the employee who is only $3.00 per week ‘better off’ now, a future Minimum Wage increase could result in him being ‘worse off’. After an interchange with the Bench, Mr Dusevic accepted that this submission was not supported by the requirement under the Act that the BOOT assessment is to be conducted at the ‘test time’, which is found at s 193(6) as follows:

‘Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.’

[29] As to the proposed drug and alcohol testing clause, Mr Dusevic put that the proposal was an invasion of privacy and in breach of the Act’s personal/carer’s leave provisions. S 97 of the Act is as follows:

‘97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.’

S 107 of the Act is as follows:

‘107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.’

[30] Mr Dusevic argued that s 97 provides for circumstances where an employee is unfit for work and not otherwise. Thus, the requirement to conduct drug or alcohol testing is a direct breach of the Act. Mr Dusevic further submitted that s 55(4) of the Act requires that an enterprise agreement cannot contain a term which is detrimental to an employee when compared to the NES. It was said that drug or alcohol testing was an additional and invasive test and is detrimental to an employee in many respects when compared to the NES.

[31] In oral submissions, Mr Dusevic proposed that the clause could be changed to provide for an employee to be sent home or for a doctor to assess fitness, rather than undertaking actual testing. Such testing was an invasion of privacy and contrary to other provisions of the Act. He believed the club industry is not one which involves a high level of risk, such as where heavy machinery or driving equipment is concerned.

[32] In reply, Mr Marshall noted the comments of the Full Bench in Briggs, which recognised that drug and alcohol testing was a reasonable and legitimate employer response to safety, even if it involves some interference with employee privacy. Mr Marshall emphasised the Club’s policy does not provide for random testing; it is testing with cause. Mr Marshall accepted this was the first time the policy had been included in the Agreement. During the negotiations, the Union proposed no alternative clause, just opposition to the Club’s clause.

[33] Mr Marshall rejected Mr Dusevic’s claim the industry was not dangerous by relying on Ms Coates’ evidence; See paras [12]-[14] above.

CONSIDERATION

Alleged failure to meet the BOOT

[34] Surprisingly, the Union adduced no evidence to substantiate its objection to the Agreement’s approval because it failed to satisfy the BOOT. There was no probative evidence to displace the calculations and assessments of Ms Coates. Mr Dusevic baldly asserted that one employee, on the affected night shift would be $15.92 ‘worse off’ compared to the Award. This assertion was not supported by the Club’s evidence. Mr Dusevic claimed that even if the employee was $3.00 per week ‘better off’ under the Agreement, any future Minimum Wage Review increase would see him ‘worse off’. With respect, that is not a relevant consideration. The assessment of the BOOT is at the ‘test time’, not at some speculative, indeterminate point in the future (see para [28] above).

[35] Mr Dusevic brought no witness evidence from any of the affected employees. While he relied on a comparison document (see para [25]) to demonstrate his assertions, I agree with Mr Marshall that the premise of these calculations was on a hypothetical employee who works solely from 7:00pm to 7:00am, Monday to Friday. The evidence was that no employee is engaged on this basis. Accordingly, the fundamental assumption of the Union’s calculation is incorrect and misleading.

[36] While the assessment of whether a particular enterprise agreement meets the BOOT is a statutory duty undertaken by the Commission under s 193 of the Act, where a party, particularly an employee bargaining organisation, objects to the approval of the Agreement because of a claim that it fails to meet the BOOT, there is an obligation on that party to have a sound evidentiary basis for its objection. Where there is uncontested evidence to the contrary, and where the objection is based on incorrect assumptions, then it is highly unlikely the Commission would refuse to approve the Agreement.

[37] In any event, Mr Dusevic’s submission ignores the other benefits compared to the Award which are listed at para [21] above. It must be emphasised that an assessment of the BOOT is not a ‘line by line’ analysis of one term or condition in the Agreement compared to its corresponding provision (or lack thereof) in the Award. As was said in Armacell Australia Pty Ltd & Ors[2010] FWAFB 9985 at para [41]:

‘[41] The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement. The approach adopted by the Commissioner includes an identification of terms which might, on his view of the term, be less beneficial for an employee. There is nothing on the face of the Commissioner’s decision to indicate what account if any he took of any terms which might be more beneficial for an employee. He obtained a large number of undertakings from all three employers in relation to terms which he considered undermined existing entitlements. It may be that if we applied the BOOT ourselves we might come to different conclusions to the Commissioner in relation to the number and nature of the undertakings required. To follow that course, however, would require each of the applications to be considered afresh with the necessary delay that would entail.’

[38] In National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5163 (the ‘NTEU decision’), the Full Bench said at paras [46]-[47]:

‘[46] The test, as the name implies, requires an assessment of the overall benefit to an employee employed under an enterprise agreement as compared to the relevant award. This consideration does not require an assessment of the circumstances of each individual employee but, as s.193(7) allows, “... if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class , FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”.

[47] As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did [footnotes omitted].’

[39] In the NTEU decision, the Full Bench quoted from Lawler VP’s decision which was under appeal; See: University of New South Wales[2010] FWAA 9588. It is useful to highlight how His Honour described the task of assessing the BOOT. At para [96], His Honour said:

‘[96] It is trite to observe that awards typically contain both monetary and non-monetary terms and conditions. Obviously enough, the BOOT calls for an overall assessment. Comparing monetary terms and conditions is, at the end of the day, a matter of arithmetic. There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the “overall” assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to particular non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award. In my view, it may also be relevant to consider the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement.’

[40] I am satisfied, on a proper balancing of all the relevant factors, that the Agreement meets the BOOT. It is appropriate to have regard to all of the benefits identified by the Club which are in excess of, or are more beneficial than the terms of the Award. But in any event, I am convinced, based on the evidence of Ms Coates and the actual rosters tendered in the procceding, that none of the employees will actually suffer any reduction in overall earnings. This is so, because no employee works solely from 7:00pm to 7:00am, Monday to Friday and each employee’s weekly earnings are at least $3.00 per week higher than would otherwise be payable under the Award.

Drug and Alcohol Testing Clause

[41] Mr Dusevic could not identify any decision of the Commission which has considered whether it is permissible for an enterprise agreement to contain a term which deals with drug and alcohol testing of employees. As far as my research reveals, there has been only one other enterprise agreement decision which has expressly referred to this matter; albeit briefly. However, that decision did not consider whether such a provision is inconsistent with other provisions of the Act, notably ss 55(4), 97 and 107, as alleged here.

[42] In Rapid Response Security Pty. Ltd. T/A Rapid Response Security [2013] FWC 3731, Lee C considered the employer’s argument that its drug and alcohol procedure was a benefit to employees for the purposes of the BOOT. The Commissioner said:

‘[38] The drug and alcohol policy provides for a procedure for dealing with the use of drugs and alcohol in the workplace. I cannot detect any element of the procedure that could be considered a benefit to employees for the purposes of the better off overall test.’

[43] In the present case, there was no submission advanced by the Club that the drug and alcohol testing procedure was a positive benefit to employees for the purposes of the BOOT. Indeed, Mr Marshall put that the inclusion of such a procedure was irrelevant for that purpose. I agree. It will be readily apparent from the Commissioner’s comments above, that he was not dealing with the drug and alcohol procedure in some other context, such as was relied on by the Union in this case. The Commissioner certainly made no finding that a drug and alcohol procedure could not be a term of an enterprise agreement.

[44] The proposed clause is expressed as follows:

‘37 FITNESS FOR WORK

37.1 Employees must advise the Employer of any medication (prescribed or otherwise), drugs and/or alcohol which they are consuming or taking which may in any way affect the performance of their duties under the Agreement.

37.2 Employees must report all illnesses or injuries that occur outside of work that may impact on the employee’s ability to carry out their duties or where the carrying out of their duties may exacerbate their injury.

37.3 Employees subject to illnesses or injuries that may impact on the employee’s ability to carry out their duties will obtain a doctor’s certificate for such illness or injuries, as well as a return to work plan from their doctor if requested by the Employer.

37.4 Subject to clause 37.5, if the Employer suspects on reasonable grounds that an employee has presented for their shift impaired by the use of alcohol, non-prescribed drugs or any controlled or illicit substance, the employee agrees to participate in an independent drug and alcohol test conducted in accordance with the Employer’s Drug and Alcohol Testing Policy, as amended from time to time. Drug and alcohol testing for the purpose of this clause will be conducted by taking a sample of the employee’s saliva.

37.5 The Employer can only request an employee to participate in a drug and alcohol test if this requirement to participate in a test has been approved by the Employer’s Human Resources Department, or other person nominated by the Employer’s Human Resources Department.

37.6 If a drug and alcohol test confirms the employee is impaired by the use of alcohol, non-prescribed drugs or any controlled or illicit substance while at work the employee may be summarily dismissed.

37.7 If the Employer has good reason to suspect that an employee is not fit to perform their normal duties, due to injury or other reason, then the Employer may require an employee to attend a doctor of the employee’s choice, at the Employer’s expense, for a full medical examination in order to certify them fit to perform their normal duties. Employees agree to attend such an examination if required, and understand that should they refuse they may not be permitted to commence work until such time as a medical clearance is obtained.’

[45] Of course, there is no doubt that numerous industries and many employers have adopted drug and alcohol testing policies, which usually sit outside the terms of a conventional industrial instrument. Moreover, the issue which has become a matter of some recent public, scientific and industrial controversy concerns, not drugs and alcohol testing per se, but the most effective and reliable means of testing - saliva testing or urine testing. Obviously, the former is less invasive than the latter.

[46] In my view, Mr Dusevic’s attempt to link drug and alcohol testing with the entitlement and notice requirements for employees to personal/carer’s leave is so disjunctive as to be absurd. With all the recent debate over drugs and alcohol policy, I have never heard the argument that such policies are in breach of ss 97 and/or 107 of the Act. Mr Dusevic has drawn a very long bow indeed by arguing such a submission. Personal leave entitlements for employees ‘not fit for work’ arise from an employee’s own assessment or their doctor’s assessment of their fitness for work. Drug and alcohol testing cannot possibly be viewed as an entitlement, in circumstances where the employer directs the employee to go home from work and where there is a possibility of disciplinary action for attending work impaired by alcohol or drugs.

[47] Another dimension to the Union’s argument, is that drug and alcohol testing is both a breach of individual privacy and a ‘detriment’ when compared to the NES. Firstly, as Mr Marshall pointed out, the recent authorities of the Commission which have dealt with this issue (Briggs) have consistently observed that:

‘the implementation of a program of random and targeted drug testing is a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy.’

[48] I agree and adopt this approach as being eminently sensible. It must also be emphasised that the proposed clause does not provide for random testing, which is often criticised by Unions on behalf of their members. In my view, there are three aspects of the clause which might be said to provide certain protections as to the privacy concerns of employees:

(a) it is not about random testing, but can only be undertaken if the Club suspects ‘on reasonable grounds that an employee has presented for their shift impaired by the use of alcohol, non-prescribed drugs or any controlled or illicit substance’;

(b) the proposed testing is saliva testing, which is generally accepted as less invasive than urine testing; and

(c) the requirement to participate in a test must be approved by the Club’s Human Resources Department, thereby taking it out of the hands of a rogue or over-zealous supervisor or manager.

[49] In my opinion, the Club’s proposed clause is a relatively benign provision compared to other drug and alcohol testing policies (of which I am aware) which have been the subject of the Commission’s consideration in disputes under ss 739 or 240 of the Act; See, for example: Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others [2012] FWAFB 4998 and Caltex Australia Limited v Australian Institute of Marine and Power Engineers, The Sydney Branch; The Australian Workers’ Union [2009] FWA 424 respectively.

[50] Importantly, Mr Dusevic did not explain - nor do I think he could have - how drug and alcohol testing was a ‘detriment’ to employees. According to the Macquarie Concise Dictionary, ‘detriment’ means ‘loss, damage or injury’. I fail to understand how testing for a substance which is designed to ensure an employee’s safety and the safety of those around them, can possibly be characterised as a ‘loss, damage or injury’. I would add that firstly, the proposed clause in no way hinders or diminishes the rights of an employee to both the access and taking of personal/carer’s leave. In truth, drug and alcohol testing has absolutely nothing to do with personal/carer’s leave.

[51] Secondly, I think Mr Dusevic’s submission that drug and alcohol testing under this clause is a detriment for employees, demonstrates an unrealistic disconnect with reality. I just cannot reconcile the positive benefit of an employer’s obligation to provide a safe workplace for its employees and patrons, with any notion of detriment. Surely, the taking of reasonably practicable steps to ensure employees’ safety, must be exactly the opposite of a detriment. Finally, there is something a little surreal in the Union’s opposition to drug and alcohol testing for employees, when those same employees have a duty under their obligations for the responsible service of alcohol (RSA) to customers. I see no good reason why a drug and alcohol policy cannot be a term of an enterprise agreement. Such a term, in the form it is in this case, is not inconsistent with the NES or any other provisions of the Act.

[52] For the aforementioned reasons, I am satisfied the Agreement should be approved by the Commission. Pursuant to s 54 of the Act, the Agreement shall have a formal operative date of 7 days hence, namely 16 April 2014 and have a nominal expiry date of 16 April 2017. For the purposes of s 201(2) of the Act, I note the Union, despite its objections, seeks to be covered by the Agreement. Lastly, I note the undertaking given by Mr Marshall on behalf of the Club, that the 2% wage increase available from the date of the Commission’s approval of the Agreement, will be backdated to the hearing of the application on 27 March 2014.

DEPUTY PRESIDENT

Appearances:

Mr R Marshall, Solicitor and Mr T Brett, Solicitor for the applicant

Mr M Dusevic for United Voice.

Hearing details:

2014,

Sydney

11, 27 March

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