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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Alert24 - Safeguard Update

Policy conflicts

Policy conflicts
2011-12-16
Article Type:
Cases
Publication Date:
2011-12-16
Jurisdiction:
New Zealand
Judgment Date:
2011-09-05

An employer has been successfully challenged by a union in its attempt to implement a drug and alcohol policy which it said complemented the impairment policy in the collective agreement (CA).

Tenix Alliance New Zealand Ltd and the EPMU had an impairment policy as an express provision in the CA, which could not be varied without the mutual agreement of the parties.

The company wanted to introduce a drug and alcohol policy, which it claimed was separate and complementary to the impairment policy in the CA, albeit there was "some overlap" between the two. The union, however, claimed the proposed drug and alcohol policy was a unilateral variation of the CA.

The Employment Relations Authority determined that the impairment policy and the drugs and alcohol policy were not about disparate matters - they both addressed the same matter of health and safety, with particular focus on impairment through drug and alcohol use by employees. However, the two policies were not identical. The drug and alcohol policy was broader in scope than the impairment policy, to the extent it would constitute a material change to the CA.

The Authority agreed that there were a number of aspects of this change which the company had tried to bring about by introducing the drug and alcohol policy. One example was that random testing was provided for in the drug and alcohol policy, while there was no provision for random testing in the impairment policy.The impairment policy only provided for testing where there was "reasonable suspicion" or following an accident or incident.

The Authority determined that because the impairment policy was part of the CA, it could not be altered without mutual consent. The introduction of random testing had not yet been agreed to by the union, although the Authority did not consider the union was attacking the concept and worth of random testing. Instead, the union wanted to have the CA's terms and conditions observed and kept free from unilateral variation by the company. Subordinate policies should not displace contractual terms and conditions.

The Authority concluded that if the company wished to vary the CA, it had to extract from the drugs and alcohol policy the parts which were not already in the impairment policy and seek the agreement of the union for them to be included by variation of the CA.

Organisations Mentioned:
Employment Relations Authority
Reference No:
111216CA-4054

From Alert24 - Safeguard Update

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