Consultation failures hinder drug policy changes

Background

The recent Fair Work Commission decision of demonstrates the consequences for employers who have not undertaken the proper consultation steps before making changes to workplace health and safety polices.

Failure to effectively consult of change

In January 2024, the employer, Opal Fibre Packaging, made three key changes to their alcohol and other drugs policy. The changes included:

• altering its random testing policy from a ‘blanket’ style approach, where all employees at a site selected by the testing provider would be tested, to a random sample (selected by the testing provider) approach
• removing the ability of employees to self-test for alcohol on site and to self-exclude following a result higher that 0.00% BAC
• requiring all non-negative drug test results for prescription or over-the-counter medications to be treated as all other non-negative drug test results, meaning that the employee would be stood down until the results were assessed by a medical review officer and confirmed as consistent with any disclosed ‘prescription pharmaceutical fitness for work assessment’.

Opal Fibre Packaging contended that it did consult on the changes. Additionally, it argued that, in the alternative, it was not required to consult on the changes as they were largely administrative in nature and were not significant changes to already established practices. In Opal Fibre Packaging’s view, this did not trigger the health and safety provisions of the WHS Act.

However, the Australian and Manufacturing Workers Union (AMWU) disputed the employer’s right to make the changes, arguing that Opal Fibre Packaging had not fulfilled its consultation obligations under the relevant WHS Acts in each state where it operated. Although Opal Fibre Packaging had provided workers with a presentation and the opportunity to respond and provide input on the proposed changes, this did not equate to the consultation required under the WHS Acts or the standard set out in the case of Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059. Ultimately, the AMWU argued that Opal Fibre Packaging merely notified employees of the changes instead of consulting with them.

The AMWU also argued that employees taking prescribed medication and needing assessments from medical practitioners could face additional expenses due to more frequent appointments with their healthcare providers.

Decision

In his decision, Deputy President Ian Masson determined that the consultation provisions in the WHS Acts had been enlivened, and that Opal Fibre Packaging had subsequently failed to meet its consultation obligations. This was because the changes ultimately affected the health and safety of its workers and could potentially eliminate or minimise risks.

Deputy President Mason concluded that the presentation delivered by Opal Fibre Packaging failed to include a rationale for each of the changes, nor did it discuss any alternatives considered or a cost benefit analysis. As such, Opal Fibre Packaging’s employees did not have a reasonable opportunity to express their views and influence decision making.

Ultimately, Deputy President confirmed that Opal Fibre Packaging was not permitted to introduce the changes. However, it was noted that if a further consultation process were undertaken and the identified deficiencies rectified, the proposed changes could then be implemented.

Key takeaways for employers

This case serves as a reminder to employers about the importance of workplace consultation before implementing a change.

If your workplace is considering making a workplace change, it should take the following steps:

• Determine whether consultation provisions apply to the proposed change. Ask:
• Is it a major workplace change?
• Does it affect employee hours?
• Does it affect health and safety?
• Are redundancies involved?
• Consider whether a modern award or enterprise agreement applies to your workplace and, if so, what the consultation obligations state.
• Outline the reasons and provide a rationale for the changes before any decisions are made.
• Clearly communicate the proposed changes to employees and provide them with a reasonable opportunity to provide input, raise concerns and contribute to decision making.
• Advise employees of the decisions resulting from the consultation process.

For assistance in identifying and implementing these consultation requirements in your workplace, please contact a member of our workplace relations and safety team.