Alcohol and drugs in the workplace — what is reasonably practicable?

Businesses must undertake alcohol and drug risk assessments to help prevent workplace accidents — and reduce the risk of severe penalties, including jail.

The Work Health and Safety Act 2011 (WHS Act) does not impose a specific obligation on businesses to implement policies and systems regarding the use of alcohol and drugs in the workplace, however recent cases suggest a person conducting a business or undertaking (PCBU) may be found guilty of breaching the WHS Act where an effective system is not in place. A number of companies have been successfully prosecuted under WHS law in recent years, despite the fact their workers were injured or killed while under the influence of alcohol or other drugs.

General duty

The WHS Act requires organisations to ensure, so far as is reasonably practicable, the health and safety of workers and others. Part of this duty includes conducting risk assessments and taking appropriate action to systematically eliminate (or minimise) the risks identified.

Alcohol, illegal drugs and in fact some legal drugs can create risks in the workplace that need to be effectively managed. For some industries and workplaces, the need to eliminate the risk of workers being impaired by drugs and/or alcohol is imperative. While risks may be greater in some industries and occupations, all organisations should develop an alcohol and/or drug policy that clearly sets out the company’s position, tolerance and/or consequences for breaches. The policy should state who is subject to the policy — i.e. whether it applies to all employees or binds all persons (contractors/labour hire workers/volunteers, etc) who attend the company’s site. It is important to note that not all initiatives will be suitable in all workplaces and, depending on the nature and severity of alcohol- and drug-related hazards, the duties owed by some PCBUs will be far greater than others.

Policies and procedures aren’t enough

The importance of implementing effective systems of work regarding drugs and alcohol was reiterated in March 2018 when Ambulance Victoria was convicted and fined $400,000 for breaches of the Victorian Occupational Health and Safety Act 2004. The prosecution followed the death of a paramedic due to drug toxicity, with an autopsy finding fentanyl and morphine in his system. The paramedic was a Team Manager with 30 years’ experience and the only employee working at the station when he was found dead in January 2015. Ambulance Victoria was charged by the safety regulator for failing to adequately record and store stocks of morphine and fentanyl, and pleaded guilty to two charges of failing to provide a safe working environment and failing to ensure volunteer officers were not exposed to risks.

The Court heard Ambulance Victoria had exposed the paramedic and volunteer officers at the station to risks to their health and safety by failing to minimise the potential for illicit access to morphine and fentanyl. It was told that systems and registers were in place to record the receipt, movement, administration and disposal of the strong painkillers, and these were audited by the team manager. Checks on these audits by an area manager were supposed to be carried out every three months, but were not being conducted at the required frequency. Warrnambool Magistrate Cynthia Toose said the check system in place at the time of the paramedic’s death was inadequate and had many failures — the system of disposing of morphine and fentanyl required unused drugs to be squirted on the ground, which was then to be entered in a register. This was to be witnessed, but if there was an absence of another available officer, the system allowed the record to show no second officer available.

Workplaces must also ensure there is suitable and adequate training, instruction and supervision, consultation with workers and regular review. This was highlighted in December last year when a shipping company, Conlon Murphy Pty Ltd, trading as Barge Express, was fined $190,000 in the local court following the death of a fly-in fly-out worker. The worker died from head injuries consistent with falling from a height with a high level of alcohol in his system. A coronial inquest into the death found it was likely that after drinking at a pub and subsequently sleeping on the vessel, the worker fell backwards while climbing from the boat to the wall and struck his head, before falling into the water and drowning. It appeared to be an accepted practice for workers to drink alcohol in the workshop after hours, despite the fitness for work policy stating no one would be allowed to enter a workplace or carry out work while under the influence of alcohol or drugs.

Fatalities such as these are not unforeseeable. The Northern Territory WorkSafe director stated that if the company had properly implemented its own safety policies and procedures then it was unlikely the worker would have died. Due to the extraordinarily unsafe access arrangements, the Maritime Union of Australia has since urged the Northern Territory to introduce industrial manslaughter laws to enable harsher penalties. These cases raise an important question — can employers still be held liable for the actions of workers when they have done what was reasonably practicable to eliminate the risks associated with alcohol and drugs?

What about personal responsibility?

Workers have a duty to take reasonable care for their own health and safety, and that of others as well as to comply with any reasonable instructions, policies and procedures given by their PCBU, business or controller of the workplace. Where a PCBU has laid down a safe and proper practice, and exercised due diligence to ensure the practice is observed, then casual failure by employees to observe that practice on a particular occasion will not render the PCBU criminally liable for failure to ensure safety.

While a PCBU does have a duty to the careless, inattentive or inadvertent worker, it does not have a duty to a reckless worker. In Kirk v Industrial Relations Commission of NSW & WorkCover NSW [2010] HCA 1, the High Court found the unforeseeable behaviour of a disobedient employee may well lead to an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against.

In SafeWork NSW v Wollongong Glass P/L [2016] NSWDC 58, a worker under the influence of cannabis was killed at a factory by glass sheets that fell and caused him fatal head injuries. The accident occurred as the deceased attempted to use his hands to support four sheets of glass weighing approximately 320 kg stacked on an A-frame. The effects of cannabis influenced and significantly impaired the worker’s perceptions, judgement, decision-making processes, vigilance, appreciation of dangers, concentration and reaction times. The Court found the Defendant not guilty as the deceased behaved irrationally, against instructions and without any regard for his own safety because he was under the influence of cannabis. This case highlights the importance of implementing safe systems of work and suggests a PCBU will not be guilty of a charge of a breach of duty under the WHS Act for the actions of a disobedient employee who is acting contrary to an established safe system of work.

What this means for employers

All PCBUs must undertake a risk assessment in relation to alcohol and other drugs in the workplace and put policies and procedures in place to eliminate or minimise any risks or hazards. It is not sufficient to only have policies and procedures in place — they must be properly implemented and monitored to ensure compliance by workers and that PCBUs are complying with their obligations under the WHS Act.

*Carlie Holt is a partner with Sparke Helmore Lawyers, and specialises in workplace health and safety law.

^Georgia Kennedy is a lawyer with Sparke Helmore Lawyers.

Image credit: ©stock.adobe.com/au/Sangoiri