| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 375 |
| Hearing date | 9 Oct 2012 |
| Determination date | 17 October 2012 |
| Member | R A Monaghan |
| Representation | L Yukich ; D France |
| Location | Rotorua |
| Parties | Electrical Union 2001 Ltd and Anor v Mighty River Power Ltd |
| Other Parties | Cowell |
| Summary | HEALTH AND SAFETY – DISPUTE – Applicants sought declaration worksite and second applicant’s position not safety sensitive to extent required to justify random drug and alcohol testing – Authority found exposure to hazards and risk at worksite high – Found previous Employment Court judgment setting out safety sensitive criteria for random drug and alcohol testing not overtaken by subsequent Supreme Court judgment – Found no requirement to show worksite or position posed risk to public safety – Found no requirement to identify worksite as hazard before it could be said to be safety sensitive – Found mere failure to identify hazard posed by employee under influence of drugs and alcohol in list of worksite hazards did not mean worksite not safety sensitive – Found decision about safety sensitivity for employer to make – Found argument sufficient safety measures already in place did not address role of drug and alcohol testing as one measure available to manage hazards or address respondent’s obligation to take all practicable steps in respect of management of hazards – Found respondent entitled to determine entire worksite safety sensitive – Found worksite and second applicant’s position safety sensitive – Questions answered in favour of respondent – Geothermal production technician |
| Abstract | Second applicant employed by respondent as geothermal production technician. Applicants sought declaration worksite and second applicant’s position not safety sensitive to extent required to justify random drug and alcohol testing. Respondent amended drug and alcohol policy to allow random testing of employees. Second applicant stood down after refusing to undergo random test. First applicant considered policy unilateral variation of collective employment agreement and applicants issued proceedings. After mediation parties sought Authority determination on preliminary question. Applicants claimed law evolved since previous Employment Court judgment set out safety sensitive criteria for random drug and alcohol testing, worksite lacked key element of risk to public safety and worksite not identified as safety hazard. Applicants claimed second applicant’s position not safety sensitive as neither position nor second applicant’s behaviour identified as hazard and sufficient safety measures in place already.;AUTHORITY FOUND –;HEALTH AND SAFETY – DISPUTE: Exposure to hazards and risk at workplace high and consequences of accident potentially catastrophic. Previous Employment Court judgment not overtaken by subsequent Supreme Court judgment. No requirement to show worksite or position posed risk to public safety. No requirement to identify worksite as hazard before it could be said to be safety sensitive. Mere failure to identify hazard posed by employee under influence of drugs and alcohol in list of worksite hazards did not mean worksite not safety sensitive. Random drug and alcohol testing reasonable step to take in interests of elimination, isolation or minimisation of significant hazards in safety sensitive workplace and decision about safety sensitivity employer’s to make. Argument sufficient safety measures in place already did not address role of drug and alcohol testing as one measure available to manage hazards or respondent’s obligation to take all practicable steps in respect of management of hazards. Respondent entitled to determine entire worksite safety sensitive. Worksite and second applicant’s position safety sensitive. Questions answered in favour of respondent. |
| Result | Questions answered in favour of respondent; Costs reserved |
| Main Category | Health & Safety |
| Statutes | Electricity Act 1992;Health and Safety in Employment Act 1992;Human Rights Act 1993;New Zealand Bill of Rights Act 1990;Privacy Act 1993;New Zealand Thoroughbred Racing Incorporated Amended Rules of Racing 2011 |
| Cases Cited | Cropp v Judicial Committee [2008] 3 NZLR 774;Maritime Union of New Zealand Inc v TLNZ Ltd (2007) 5 NZELR 87;NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd [2004] 1 ERNZ 614 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_375.pdf [pdf 258 KB] |