 | Drug Testing: Workplace Piss-tests Slammed in Court |
 Air New Zealand's controversial plan to test its 10,000 workers for drugs and alcohol is being legally challenged in the Employment Court in Auckland this week.
The second of an expected three days of hearings heard evidence from union chief Andrew Little, national secretary of the AEPMU who told the judges that drug and alcohol testing of workers is intrusive, embarrassing and humiliating and produced questionable information about a worker's impairment.
On Tuesday the court heard from Australian occupational health expert Dr Ian Gardner who listed many harsh criticisms of the Air New Zealand policy for "bladder-police".
 08/10/03 'Bladder-Police' Flawed Says Expert
08/10/03 Union Attacks Air New Zealand Drug Test Plan
9/10/03 Air NZ Drug Tests 'Dubious'
10/10/03 Air NZ Chief Defends Drug Tests
13/10/03 Quarter Of Staff Fail Drug Tests
13/10/03 Drug Test Cheats Outlined
14/10/03 Scientist Admits She Gave Wrong Drug Test Evidence
'BLADDER-POLICE' FLAWED SAYS EXPERT
By Mathew Dearnaley, New Zealand Herald, 8th October 2003
Air New Zealand's controversial bid to introduce random drug and alcohol
testing for its 10,000 staff drew references at a court hearing yesterday to
"bladder-police" and urine cheating kits.
Australian occupational health expert Dr Ian Gardner told a full bench of
three Employment Court judges in Auckland that drug-testing was an
unreliable measure of impaired performance, and open to cheating by
hard-core abusers.
This included buying "certified drug-free urine" on the internet for
self-insertion through a catheter to fool even the closest inspection.
Testifying for six aviation unions in a major legal challenge, Dr Gardner
said Air NZ's proposal leaned heavily on a punitive model from the United
States rather than genuine health and safety motives.
"The model's origins come out of a moral direction of the Reagan White House
to create a drug-free America - it was seen as a good thing to set the moral
tone."
Dr Gardner was the first witness in a hearing due to last all week, followed
by submissions in December from Business New Zealand, the Council of Trade
Unions and the Privacy Commissioner, whose interest is spurred by the
potential precedent for all workplaces.
Chief Judge Tom Goddard is hearing the case with Judges Graeme Colgan and
Barrie Travis. The Engineering, Printing and Manufacturing Union is heading
the unions' challenge on behalf of about 5000 staff - but not including
pilots.
Dr Gardner refused to accept under cross-examination by airline lawyer
Robert Fardell, QC, that Air New Zealand's focus on drug education for the
good of workplace and aviation safety should mitigate concerns about
disciplinary sanctions.
Dr Gardner, who has worked for IBM and is a consultant to the Australian
Defence Force, said forced referrals to employee assistance schemes were
"not regarded as good industrial or medical practice, and may be unethical".
He wondered how informed, voluntary consent was possible in such cases, and
pointed to a lack of policy detail about the training of the
"bladder-police" who would collect urine samples.
Despite acknowledging the proposed testing technology as "gold-standard", he
said the mere presence of drugs or alcohol was a poor measure of impairment,
and no substitute for effective performance management by both supervisors
and workmates.
There was no evidence of a drug problem at Air New Zealand and he pointed to
an absence of research by ACC into substance abuse as a cause of workplace
accidents.
Dr Gardner conceded a possible case for testing pilots and other workers
such as crane operators if their employers had reasonable cause to suspect
alcohol or drug-related impairment.
But he said alcohol abuse was at least 10 times more likely than drugs to
cause workplace accidents, and criticised a proposed exemption by the
airline for limited liquor consumption for business purposes if approved at
a senior level.
Unions lawyer John Haigh, QC, said Air New Zealand's proposal was "highly
intrusive of some of our most fundamental rights: the right to privacy and
the right to refuse medical treatment".
The case
* Several hundred employers in industries such as forestry and construction,
and including Air NZ, already take urine samples to screen job candidates
for illicit drug use.
* Air NZ wants to extend the practice to random and other forms of drug and
alcohol testing for potentially all 10,000 of its employees, up to the chief
executive.
* Six unions covering half its workforce - including aircraft engineers and
cabin crew, but not pilots - are challenging its plans in a test case in the
Employment Court at Auckland.
UNION ATTACKS AIR NEW ZEALAND DRUG TEST PLAN
NZPA, Wednesday 8th October
Drug and alcohol testing of workers was intrusive, embarrassing and
humiliating and produced questionable information about a worker's
impairment, a union chief told a court today.
Air New Zealand's controversial plan to test its 10,000 workers for drugs
and alcohol is being legally challenged in the Employment Court in Auckland.
Today, the union representing a quarter of the Air NZ workers said in most
cases of impairment from drugs or alcohol, there would be observable
behaviours and external signs.
Andrew Little, national secretary of the Amalgamated Engineering, Printing
and Manufacturing Union, said the union's objection to the plan was not
made lightly and the union acknowledged airline's obligations to provide a
safe work place.
The union also shared the airline's interest in maintaining the health and
safety of their workmates and the public.
However, he said after 11 years of dealing with employment matters he had
identified seven potential causes of cognitive impairment.
They included mental or physical fatigue; being under the influence of
alcohol or legal or illegal drugs; stress, depression or other psychiatric
illnesses; migraine headaches; dehydration or malnourishment; and
conditions such as uncontrolled diabetes.
He said managers should be trained to recognise observable behaviours and
external signs of drug and alcohol impairment and the risks they posed.
The union had two objections to the proposed testing programme.
First, it was intrusive, embarrassing and humiliating. Second, drug testing
by urine sample could not measure or give the employer an indication of
whether the employee was impaired when or before the test was taken.
"Given the questionable value of the information gained, we simply do not
believe it is justified," Mr Little told the hearing.
The hearing before a full bench of three Employment Court judges, was
expected to last all week.
AIR NZ DRUG TESTS 'DUBIOUS'
By Mathew Dearnaley, New Zealand Herald, Thu, 09 Oct 2003
Air New Zealand's workforce drug-testing plans were yesterday attacked by a
former medical chief at the airline.
Dr David Black, one of the airline's two chief medical officers until 1997,
told the Employment Court yesterday that the drug-testing lacked proper
safeguards.
He acknowledged there may be a case for testing transport workers in
"safety critical" tasks.
He also accepted under cross-examination that these workers could include
aircraft engineers and that the alternative may put co-workers and airline
passengers at risk, despite his strong reservations about the reliability
of information from urine samples.
But Dr Black, who now lectures on and practices occupational medicine, said
testing other workers on health and safety grounds as a surrogate for
direct assessments by supervisors of impaired performance was far more dubious.
It would jeopardise a hard-earned climate of trust and respect between
managers and staff at the airline.
It implied mistrust between employer and employee, and was "a most
unhealthy basis for a relationship in an organisation in which safety is
paramount".
Dr Black was also scathing of plans to refer test results to
human-resources staff not bound by a medical code of ethics.
His concern extended to a lack of medical privilege covering a consent form
in which staff selected randomly for urine tests for five classes of drugs,
or breath tests for alcohol, would be asked to disclose any medication they
were taking.
The airline already conducts pre-employment testing but a proposal to
extend these to its 10,000 existing staff is under challenge by six unions
representing workers, including aircraft engineers and cabin crew, although
not pilots.
Chief Judge Tom Goddard is hearing the case in Auckland with Judges Graeme
Colgan and Barrie Travis.
Airline witnesses are due to start testifying today. The court will hear
submissions in December from the Council of Trade Unions, Business NZ and
the Privacy Commissioner about ground-breaking aspects of the case.
The five classes of target drugs include not only those which are illegal,
but some which Dr Black said had legitimate medical uses, with or without
prescriptions.
Many substances of potential concern, such as Prozac, would go undetected
by the proposed screening.
Despite his reservations about drug tests as indicators of impaired
performance, he agreed with Judge Travis that detecting illicit substances
could have an operational "utility" in an industry that depended on the
integrity of those working in it.
Engineering, Printing and Manufacturing Union secretary Andrew Little
dismissed a suggestion by airline lawyer Richard Fardell, QC, that random
testing would be an effective deterrent to illicit drug use, calling it a
lottery which some workers would resist "in any circumstance, to their
detriment".
He accused the airline of failing to comprehend the humiliation it would
cause, and called it an "insidious and hopelessly inadequate" form of
management which avoided dealing with impaired performance at the time of
greatest risk.
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