LCR21788

• This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 29 June 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990.

• 1. A person affected by the use of intoxicants in a safety-critical environment may endanger that individual, work colleagues, visitors and customers.

Employer’s case

The Employer has a Policy on Alcohol and Substance Abuse going back to 2003 which it reviewed in 2012. Following that Management review the Employer felt that as the Port was a safety-critical work environment it should introduce random intoxicant testing in conjunction with its existing policy which allowed for self- referral, management or supervisory staff referral arising from cause/performance issues, family referral and medical referral. The Employer could not get the agreement of the Group of Unions to such a scheme and so went ahead and introduced it for new staff at all levels and all third parties. Senior managers agreed on a voluntary basis to be part of the scheme. The Employer is relying on a number of Sections of the Safety, Health and Welfare at Work Act 2005 (“the Act”) which require them to provide a safe place of work and safe systems of work and believes that the introduction of random intoxicant testing will assist them in meeting their obligations under the Act.

The Employer informed the Court that since the introduction of random intoxicant testing for staff employed after 1^stJanuary 2013 the test has picked up two incidences, one in relation to a permanent member of staff and the other related to a contractor. The Employer, with the assistance of their professional health and safety representative, provided the Court with information in relation to the rise of drug-related cases in Ireland in recent years and the impact of intoxicant abuse on performance and behaviours at work. The Employer went on to set out the nature of training they were proposing to provide to senior staff who would have a role in implementing the policy and the benefits of having such a policy.

Unions' Case

The Group of Unions' position is that the pre-January 2013 staff are all covered by an earlier June 2000 Policy on Alcoholism (Substance Abuse) and they do not consider it necessary for the Employer to introduce a new random intoxicant testing Policy. The Group of Unions indicated that they were not familiar with the 2003 Policy that the Employer was quoting and could not recall it being negotiated with the Unions. However, neither could they dispute the Employer’s assertion that they had been operating in accordance with that Policy since 2003 when it was circulated to all staff. The Group of Unions noted the Employer’s contention that the Port was a safety-critical area but it was their view that that in and of itself did not constitute a requirement for random intoxicant testing. The Group of Unions represent workers employed in a wide range of other employments that could be considered safety-critical but no requirement for random testing exists in those other employments. Where the legislature had considered it essential for random testing to exist it had legislated for same. In this instance, there is no legislative nor regulatory requirement for random intoxicant testing and the Unions are opposed to the introduction of same.

Discussion

It is clear from the submissions of both parties and the oral submissions made on the day that there is no dispute in relation to the necessity of having an appropriate Alcohol and Substance Abuse Policy in the employment. While the Unions were not familiar with the origins of the 2003 Policy, this Policy would appear to have been operating successfully to date. The difficulty arises in relation to the Employer’s wish to take matters further in circumstances where they are relying on broad statements in relation to the operation of the Port as a whole to justify the introduction of a random intoxicant testing scheme.

The impact of random intoxicant testing may affect other rights that employees have and therefore cannot be treated lightly. The challenge for an Employer seeking to introduce such a scheme is that the testing must be necessary, justified and proportionate with regard to the operational issues identified by the Employer. In this case the Court is not satisfied that the Employer identified a necessity for the introduction of such a scheme.

The Court recommends that the parties agree that the 2003 Policy is the appropriate Policy for addressing all issues that arise in relation to alcohol and substance abuse with respect to staff employed prior to 1 January 2013.

The Court so recommends.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
24 September, 2018Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.