My company, which is based in South Australia, is currently drafting a workplace bullying policy and a drug and alcohol policy, and I would like some help with two areas:
1. In the bullying policy, I would like to include the legal definition of bullying. Could you please advise where in the Work Health and Safety Act or other legislation I can find the definition?
2. In the drug and alcohol policy, I would like to state the legal instrument that allows employers to ask workers to undertake random alcohol and drug testing. What legislation is this in?
It is a good idea to include legal definitions and any relevant legislation in your workplace policies. Following is some guidance for the two areas of concern:
1. The statutory definition of workplace bullying is set out in section 789FD of the Fair Work Act 2009 (Cth), which defines bullying as “repeated unreasonable behaviour directed towards a worker, or group of workers of which the worker is a member which creates a risk to health and safety”.
Given the risk to health and safety posed by bullying, a PCBU has a duty to eliminate or minimise the risk of bullying in the workplace as part of the primary duty of care set out at section 19 of the Work Health and Safety Act 2011 (SA) (WHS Act). Safe Work Australia has published some guidance materials on workplace bullying, which is accessible at www.safeworkaustralia.gov.au/bullying#codeguides.
2. Other than in relation to federally funded construction projects or mining, there is no explicit legislative entitlement or requirement to conduct drug testing in the workplace. However, the legislative basis to introduce drug testing in the workplace arises from the health and safety duties imposed by the WHS Act, including:
- the primary duty of care on a PCBU to ensure, so far as reasonably practicable, the health and safety of workers (s 19);
- the duty of officers of a PCBU to exercise due diligence to ensure that the PCBU complies with its primary duty (s 27); and
- a duty on workers to, among other things, take reasonable care for their own health and safety and comply, so far as reasonably able, with any reasonable instruction or policy relating to health and safety in the workplace (s 28).
On the basis of a workplace policy, an employer may direct an employer to undergo drug and alcohol testing if such a direction is reasonable. It would be reasonable to conduct drug and alcohol testing in the workplace if your workers pose a risk to health and safety if performing their duties under the influence of drugs or alcohol.