Random testing of employees for drugs or alcohol is only justifiable where they work in safety sensitive areas or roles, and where a policy or contractual provision allows for random testing to occur.
In the leading Air New Zealand case (2004), the Court termed random testing ‘suspicionless testing’ and held that the arguments presented in that case which led to its finding that an employer could lawfully introduce a drug and alcohol policy: “…do not apply with the same force so as to describe as reasonable the random or suspicionless testing of all employees and cannot justify the random testing of employees working outside safety sensitive areas.”
In a later case, Maritime Union of New Zealand Inc v TLNZ (2007), the Employment Court accepted that employees working within wharf limits were in safety sensitive areas and could be subject to random testing.
However, until recently there has been little other guidance as to what comprises a ‘safety sensitive’ area of work or position.
Last month, the Employment Relations Authority determined a claim brought by an employee of Mighty River Power, who had declined to undergo a random drug and alcohol test. The Electrical Union sought a declaration that the company’s drug and alcohol policy, which allowed for random testing, breached the terms of the collective agreement and that agreement was required for the employees to submit to random testing.
The employee in this case worked at the Geothermal Power Station at Kawerau. In considering whether his role was ‘safety sensitive’, the Authority summarised the operations as extracting geothermal steam from a reservoir deep underground, with very high temperatures and pressures being involved. The energy in the fluid is converted into electricity either by being used in a turbine to turn a generator at a very high rpm or by being used in an energy converter to heat up high volumes of highly flammable material. As an acid injection system was used on site, large volumes of sulphuric acid are stored.
The Authority accepted that the exposure to hazards and risks on this site was high and the consequences of an accident or incident could be catastrophic, finding that the company was entitled to determine that the whole site was ‘safety sensitive’. It also held that the law had not ‘moved on’ from the approach in the Air New Zealand case, and that random testing was justifiable in safety sensitive areas.
Electrical Union 2001 Ltd and Cowell v Mighty River Power Ltd [2012] NZERA Auckland 375