In a recent tragic incident a worker was fatally injured when a co-worker drove with his raised forklift into the other worker.
The company had a system in place to ensure that workers were competent to operate and not just holding a ‘ticket’. Training included ensuring traveling with the forklift raised no higher than 30cm. The worker had completed a Competency to Operate (CTO) training and was warned on previous occasions as to this dangerous act.
Companies need to ensure that workers are competent to operate plant and need to set and uphold standards of operation. Even to the point of enforcement and where required as a last option dismissal. Workers need to be told that they have this duty and that the Company is not always in the wrong.
If you are considering implementing a Drug & Alcohol policy in your workplace, there are some considerations that should be worked through prior to the introduction of the policy. Though there is case law available that has supported employer’s decision to terminate a worker, there are as many cases where the worker has overturned this decision due to poor design and implementation of the policy.
However, before getting to a court of law to determine if a termination was just, employers should ensure that their company’s drug and alcohol policies are developed through a consultative approach to assist in defining all the issues and how the process will evolve should a breach be identified.
The Policy should
– clearly define in simple terms what is unacceptable behaviour, including any forms of disciplinary behaviour such as dismissal.
– be part of a structured communication process that ensures a consistent message is given to all workers including new workers, contractors and visitors to site.
– consider precautions to be implemented that consider False Positives and even the possibility of faulty measuring equipment used as part of the initial testing. These units are becoming more precise however they are only indicators of a Non Negative and that a Positive result is only provided from the NATA testing agency. Management reacting too early; victimising or even seen to be punishing a worker at this early stage should be cautioned.
In short when implementing any workplace policy, employers need to ensure the policy is clear, widely and consistently disseminated in an easily to understand format to assist in avoiding any confusion or a HR issue.
Changes to the WHS Legislation with the Harmonised law appears to be lending more weight to the need for the PCBU to consult, cooperate and coordinate their activities with other PCBUs who have a WHS duty in relation to the same matter, following a recent conviction over a failure to apply WHS Act s46. Consider Boland v Trainee and Apprentice Placement Service Inc  SAIRC 14 where the South Australian Industrial Relations Court have fined a not-for-profit organisation $12,000 for failing to comply with this duty.
There are statements from this case that both parties should not assume that there is a clear understanding of the hazards and who is responsible, if there is no consultation, cooperation and coordination.
Have you identified where more than 1 person has a duty in relation to the same matter and has each person with the duty, so far as is reasonably practicable, consulted, cooperated and coordinated activities with all other persons who have a duty in relation to the same matter? Do you have other PCBU’s interacting in your workplace with your workers? Have you met with this PCBU to discuss the work on site other than receipting the contract, insurances and the obligatory site induction with sign off of the SWMS/JSA?