SIX UNIONS CHALLENGE COMPANY'S PLANS TO TEST EMPLOYEES FOR DRUGS AND ALCOHOL

Air NZ Claims Legal Mandate

Auckland: Air New Zealand claimed a broad legal mandate yesterday for
drug-testing its 10,000 employees, despite reservations raised in court by
the Privacy Commissioner. Airline lawyer Robert Fardell QC told the
Employment Court at Auckland that the public had a legitimate expectation
that the airline was safe.

This obligation would unavoidably "trespass" into an employee's
private life or activities outside work hours.

"In any event, such information may nonetheless be information which
is very relevant to the ongoing foundation required for the employment
relationship."

Robert Stevens, a lawyer representing Privacy Commissioner Marie
Shroff, reminded the court earlier in the day - after it resumed a
test case hearing adjourned from October - that its jurisdiction did
not extend to the Privacy Act.

He confirmed to Chief Judge Tom Goddard, who with Judges Graeme Colgan
and Barrie Travis is hearing a challenge by six unions to Air New
Zealand's testing plans, that this meant it would be open to anyone to
lodge a subsequent complaint regardless of the court's ruling.

The commissioner would reserve her position before deciding whether to
take any subsequent case to the Human Rights Commission, Mr Stevens
said.

But he signalled problems the company may run into with two of the
Privacy Act's 12 ruling principles, especially the first one
prohibiting any agency from collecting personal information other than
for a lawful purpose connected with its activities.

He was concerned it was indicating some wider purpose for collecting
drug and alcohol samples than just to prevent staff turning up for
work in impaired states.

And he wondered why the airline wanted to subject all its staff to
random testing but conducted pre-employment testing only for recruits
to safety-sensitive areas.

Mr Stevens said Air New Zealand had to establish a demonstrable link
between substances being tested for and an employee's poor
performance, and then between that performance and functions of the
company.

"So, for example, if a drug makes people unusually bright and bubbly .
. . in order to demonstrate the necessity of collecting the
information, it would have to show that bright and bubbly people are
not wanted among [its] employees in that function."

He instanced a case in which the commissioner sanctioned another
company's inspections of employees' bags and vehicles after bomb
threats were received, but only subject to strict conditions and until
the threats receded.

But Mr Fardell said the threat of drug and alcohol abuse to an airline
with potentially catastrophic results gave Air New Zealand at least as
much justification for its testing regime.

"The extreme safety sensitivity of an airline business is largely
self-evident," he said.

He noted that the unions' own medical witnesses acknowledged the low
level at which drugs or alcohol could be present to cause impairment.

Mr Fardell acknowledged that no test could prove impairment
conclusively in a scientific sense, but the airlines' proposed regime
would at least provide information which could point to the likelihood
of existing or future impairment.

To a suggestion by Judge Goddard that an employee's right to refuse
consent to giving a urine sample amounted to "Hobson's choice", Mr
Fardell said it would not lead automatically to disciplinary action.

But the employer was entitled to investigate whether there was a good
reason for the refusal, as having to submit to testing "goes with the
territory" of the privilege of working in safety sensitive areas.

Council of Trade Unions president Ross Wilson sent submissions to the
court arguing that the unilateral imposition of "personally invasive"
systems which impinged on human rights or implied a lack of trust of
staff was contrary to objects of workplace legislation.

These obliged employers to provide reasonable opportunities for staff
to participate effectively in processes to address workplace health
and safety issues such as drug and alcohol use.

But Business New Zealand lawyer Penny Swarbrick said drug-testing was
already well established in potentially dangerous industries such as
forestry, and she urged the court not to make binding findings which
could inhibit their practices.

She cited a coroner's ruling which commended drug-testing to a major
forestry company and said even the Government was supporting
pre-employment screening through its "Jobs Jolt" package.

A former Air New Zealand chief medical officer, Dr David Black, said
in evidence for the unions that a tightening of medical oversight in
an amendment of the airline's testing policy was still not good enough.

He said a doctor with full accountability both to the medical
profession and the company should take responsibility for all aspects
of any drug testing, and not just when reviewing the results.