Tuesday, 27 August 2024

Legal and Social Issues Committee

Inquiry into Workplace Drug Testing in Victoria

Trung LUU (Western Metropolitan) (13:15): Pursuant to standing order 23.22, I table a report on the inquiry into workplace drug testing in Victoria, including appendices, extracts of proceedings and a minority report, from the Legal and Social Issues Committee, and I present transcripts of evidence. I move:

That the report be published.

Motion agreed to.

Trung LUU: I move:

That the Council take note of the report.

Since the introduction of the Narcotic Drugs Amendment Bill 2016, which amended the Narcotic Drugs Act 1967, Victorian medical practitioners have been able to prescribe medicinal cannabis to their patients. In the succeeding years we have experienced a rapid increase in the use of medicinal cannabis. This has posed new challenges in relation to the workplace drug testing policies. In Victoria workplace drug testing is neither mandatory nor prohibited. However, the accompanying regulations specify that the mining industry must have alcohol and other drugs policies that explain when testing is required. Policies are also required by specific legislation governing several other sectors considered to require high safety standards.

The committee heard that current legislative and regulatory frameworks around workplace safety and testing practices may discriminate against employees who have been legally prescribed medicinal cannabis. While the committee fully understands the concerns raised by employees and advocates, it has to balance these with employers’ legal responsibility to keep workplaces safe. The challenge comes down to how to test for impairment rather than the mere presence of drugs. Based on evidence the committee collected it appears clear that more work needs to be done to find alternative methods to test for impairment that provide a fairer picture of employees’ ability or lack thereof to perform their tasks safely. The committee is aware that work in this area is constantly evolving with the aim of optimising an accepted way of testing for impairment. Until then the committee believes that the current legislative and regulatory framework should be updated to provide more specific guidelines to employers on the use of prescribed medicinal cannabis and drug testing in the workplace. The committee has made recommendations to this effect.

On behalf of the committee I would like to thank everyone who made a submission to this inquiry and spoke to us at the public hearings. The committee relied on your evidence, some of which was very personal, and your expertise to understand this complex and evolving topic of the use of medicinal cannabis and its consequences in the workplace. I would also like to thank our fellow committee members for their hard work and cooperation throughout this inquiry. Finally, I am pleased to say thank you to the secretariat Sally Tregear, Julie Barnes, Chiara De Lazzari, Caitlin Connally and Patrick O’Brien for their support and ongoing assistance through the inquiry. I commend this report to the house.

Rachel PAYNE (South-Eastern Metropolitan) (13:19): I rise to make a contribution to the tabling of the workplace drug testing report. I want to thank my colleagues, first and foremost, who were part of the committee, including chair Trung Luu, and of course the secretariat for their unwavering commitment to hard work on the hearings and on this report. The tabled report is a reasoned and well-balanced set of research findings and recommendations that paint a picture of the current processes, practices and impacts of workplace drug testing. It was this week a year ago that Legalise Cannabis Victoria’s motion to set up an inquiry into workplace drug-testing practices in Victoria was passed in the Legislative Council, and here we are a year on tabling a report that tells us exactly what we knew and what we were hearing from a lot of our people: workplace drug-testing practices in Victoria are discriminatory, disorganised and outdated and lack proper safeguards for employees. Victoria can do better, so I urge the government to action all of these recommendations in the report.

This report makes several important recommendations, but I would like to focus on one in particular. Recommendation 3 in chapter 4 recommends that the government move to amend the Equal Opportunity Act 2010 to ensure people living with a disability who are taking a prescribed medication are protected from discrimination. This is an important reform particularly for patients experiencing ongoing stigma in the workplace for simply taking their medicinal cannabis as prescribed. During my time as a member of this Parliament I have heard countless stories of people who have lost their jobs simply for trying to do the right thing and disclosing that they are medicinal cannabis patients. The findings of this report are well overdue, and I welcome them.

Ryan BATCHELOR (Southern Metropolitan) (13:21): I just have some brief remarks as a member of the Legal and Social Issues Committee in relation to this report. I just want to extend our thanks to Mr Luu, for chairing the inquiry, from all the members of the committee. I think it was a very constructive process. We all worked very well together on some challenging topics in a short period of time. I particularly want to thank the committee secretariat. The Legislative Council committee staff are doing a power of work at the moment under an enormous workload, and I want to extend my thanks for their work on this report. It was very thoughtful work and very well done. I think the issues that it raised do need to be considered carefully. We heard some very compelling evidence particularly from some very passionate members of the union movement. I particularly want to thank the members of the Australian Manufacturing Workers’ Union, the Health and Community Services Union and the Mining and Energy Union for their evidence. There do need to be proper frameworks to deal with the issue of workplace drug testing. They are matters that do need to be properly dealt with in formal workplace relations settings through proper agreements. There needs to be detailed policy work, and it needs to be updated by WorkSafe Victoria. This is a very important issue, and I encourage members who are interested in it to read the committee’s report.

David ETTERSHANK (Western Metropolitan) (13:22): I rise to join Ms Payne in welcoming the tabling of this important report of the inquiry into workplace drug testing. The inquiry found that while a few sectors have mandated regulations in place for workplace drug testing, most industries in Victoria operate in a relative vacuum. WorkSafe Victoria guidance on this was last updated 17 years ago – almost a decade before medicinal cannabis was legalised in Victoria.

The inquiry heard that the lack of up-to-date regulations resulted in discrimination and dysfunction and terrible outcomes for workers. Happily, this issue is addressed in the committee’s first recommendation, that:

… drug testing should only occur where employers have a well‑founded belief that an employee may be impaired at work and should only then occur in the context of a comprehensive, alcohol and other drug policy and accompanying support framework as agreed by employers and employees …

In other words, drug testing should not be imposed randomly at work. When required, it must be done respectfully and with appropriate supports in place.

Further recommendations aimed at modernising existing regulations include amending the Occupational Health and Safety Act 2004 to define key principles around alcohol and other drug testing; requesting that WorkSafe convene a multidisciplinary working party to develop a compliance code to address matters like rights and obligations of employers and employees, education, model policies and practices and how to access support; a broad-based public education campaign; and a recommendation that WorkSafe investigate impairment-testing technologies for their suitability in workplace settings. Legalise Cannabis Victoria commends the report and urges the government to expeditiously give life to its recommendations.

Finally, we express our heartfelt thanks to all of those who contributed to the inquiry and to our wonderful secretariat, who so ably supported all concerned.

Sarah MANSFIELD (Western Victoria) (13:24): I too would like to thank Mr Luu, my fellow committee members, all of those who participated and gave evidence and particularly the committee secretariat for their hard work on this inquiry. It was an incredibly interesting and I think, as has been said, constructive inquiry. While it may have been triggered in part by the increased use of medicinal cannabis and the complexities that this has raised when it comes to workplace drug testing, what this inquiry actually brought to light is a much broader issue with the inconsistent and outdated workplace drug-testing practices and the lack of appropriate guidance for workplaces, and it really called on us to completely rethink workplace drug testing as a whole practice.

Workplace drug testing simply checks for the presence of certain substances, and apart from alcohol, the presence of most other substances does not reasonably correlate with impairment. That is something that came through very strongly in this inquiry. Moreover, testing does not actually test for every potentially impairing substance and does not screen for many things that cause impairment and equally, if not more, impact workplace safety. Workplace safety for workers and the members of the public that they may serve is paramount, and we should therefore be looking holistically at impairment arising from any cause, be it prescription, over-the-counter medication, illicit substances or sleep deprivation, as examples. Workplace drug testing in my view has an extremely limited application, if any, but accepting that it will be used, it must be used within a framework that respects people’s rights to dignity and privacy and focuses on supporting rather than punishing workers. I think that is something that comes through very strongly in the recommendations of this report, and I commend it to the house.

Motion agreed to.