Air NZ wins right to drug test staff

By CLAIRE TREVETT

The Employment Court has given Air New Zealand the right to drug test its workers in a landmark case that has unions worried other industries will follow suit.

However, the court ruled out random testing across the board, saying Air NZ could not justify random testing of workers in positions where safety was not critical and there had been nothing to indicate drugs had been taken.

Air NZ chief executive Ralph Norris said he was pleased with the judgment which allowed the company to test for drugs after an accident or near accident, or if it had cause to believe an employee's dangerous behaviour was due to drugs.

Chief Judge Tom Goddard and Judges Barrie Travis and Graeme Colgan also said it was reasonable to test employees being transferred into positions where safety was a factor and for random testing of those working in "safety sensitive" areas.

They acknowledged there was a "natural and understandable reluctance" from some employees to provide urine specimens for drug testing. However, employers had duties under the Health and Safety in Employment Act and in areas where safety was a concern, drug testing was reasonable and a good deterrent.

In areas where the effects of drugs could have catastrophic effects, safety overrode an employee's expectation of privacy, the court said.

Engineering, Printing and Manufacturing Union national secretary Andrew Little said he was disappointed the court had not ruled out random testing altogether. The union would consider an appeal.

However, he said Air NZ had gone to considerable lengths to address many of the union's concerns when amending its initial policy.

The case is the first comprehensive decision on workplace drug testing in New Zealand and has been closely watched by other industries interested in drug testing.

Forest Owners Association chief executive Rob McLagan said his group was awaiting the judgment on Air NZ before looking seriously at extending its pre-employment testing to just cause and random testing.

However, unions have warned they would keep a close eye on industries taking the decision as a green light for testing.

The court said the decision applied only to the circumstances of Air NZ and its workers, adding few other companies were of the same scale or in the same specialised field.

Council of Trade Unions president Ross Wilson said it meant other companies' policies were "unlawful" unless their circumstances, such as collection methods, mirrored those of Air NZ.

He said urgent legislation was needed to spell out legal rights and responsibilities for other industries.

The court's decision had also said it seemed "unsatisfactory" in an emerging area of law that there was no legislation to put limits on the power to drug test or safeguards on the ways the results could be used.

Mr Little said employers need to be aware that in order to introduce any drugs-testing system extensive consultation with the workforce was needed. What was right for a particular company or industry would depend on the circumstances.

The case arose after Air NZ announced plans to broaden its programme from pre-employment drug testing to include its 10,000 strong workforce, including random testing. Six unions argued the testing breached privacy, was against the Human Rights Act and Bill of Rights Act, and showed a lack of trust in employees.

What is allowed

* Random tests of workers in "safety-sensitive areas".

* No random testing of other workers.

* Tests of any worker suspected of taking drugs whose behaviour is or could be harmful.

* Tests of any workers involved in an accident or near-miss.

* Tests before employment.