In August 2012, Mighty River Power instructed an employee to undergo a random drug test. The instruction was made pursuant to a recent amendment to the workplace drug and alcohol policy, which purported to permit the random testing of employees on safety sensitive sites. The employee refused to be tested, but later provided a certificate of fitness for work and a negative drug test result that he had obtained privately. The employee’s union then raised a dispute based on the applicable collective agreement. In a nutshell, the union claimed that the ‘random testing’ element that had been introduced into the drug and alcohol policy was contrary to the collective agreement. The union argued that any attempt to impose random testing on its members was an unlawful attempt to vary the terms of the collective agreement.
In a decision dated 24 October 2013, the Employment Court upheld the union’s claim (Electrical Union 2001 Inc and Cowell v Mighty River Power [2013] NZEmpC 197), overturning an earlier Authority determination. In summary, the Court held that the amendment to the company’s drug and alcohol policy to allow random testing of employees was in conflict with two provisions of the collective agreement. These clauses were:
- Evidence of fitness for work – a provision allowing the employer to request in writing, with reasonable just cause, that an employee provide evidence of their fitness for work. While this clause was not actually part of the union’s challenge, the Court offered thoughts about its application ‘for the benefit of the parties’.
- Privacy – a clause allowing the employer to collect and retain personal information ‘with the employee consent’ and providing that the employer would only obtain such information as is reasonably necessary.
While noting that the collective agreement promoted health, safety and security, the Court decided that these two clauses provided limitations on this – to ensure that those objectives were not pursued at all costs and “to the exclusion of the rights and liberties of individual employees”. It held that a balance between the competing interests and considerations was achieved by these clauses – which guarded against the employer being able to unilaterally impose extensions, such as random testing, to its existing drug and alcohol policy.
Crucially, the Court held that the “consent” element included in the Privacy clause meant that if the employer wished to apply its drug testing policy and procedure to an employee on any particular occasion, it must first seek and obtain that employee’s informed consent to the obtaining of sample analysis information (which was personal information). The Court noted that there was no restriction in the collective agreement on an employee’s ability to refuse consent, such as a qualification that their consent not be unreasonably withheld. Furthermore, such consent could not be obtained under threat of disadvantage or dismissal. It said: “Employee consent is to be true consent and not coerced consent in the sense that the defendant cannot impose sanctions on individual employees for exercising their rights to refuse to undergo random testing”. Applying that reasoning to this case, the Court held that the employee was entitled to refuse to consent to Mighty River Power seeking to collect and retain his personal information via urine analysis from random testing.
Had this been an issue in the challenge, the Court also noted that the ‘fitness for work’ provision in the collective agreement required reasonable just cause for requesting evidence of an employee’s fitness for work. This meant that such cause was also required before a drug test could be requested.
In referring to the leading Air New Zealand case on implementing drug and alcohol testing, the Court noted an important distinction between that case and this one: that there was the presence of an express contradiction between the collective agreement and part of a policy, whereas there was no such inconsistency in the Air New Zealand case.
Finally, a few other points worth noting from the decision:
- The Court held that urine testing did not constitute ‘medical treatment’ under the New Zealand Bill of Rights Act; and
- The Court noted that under the collective agreement employees were required to abide by ‘current’ policies of the employer. Due to the wording of the clause, the Court said that these were policies in place when the collective agreement was settled, not those introduced during its term (including the random testing amendment to the drug and alcohol policy).