Watchdog wary of Air NZ drug-test plan

By MATHEW DEARNALEY

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.

Any "trespass" into an employee's private life or activities outside work hours would be unavoidable.

Robert Stevens, a lawyer representing Privacy Commissioner Marie Shroff, reminded the court earlier yesterday - 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, which prohibits any agency from collecting personal information other than for a lawful purpose connected with its activities.

He was concerned Air NZ 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 cited a case in which the commissioner sanctioned another company's inspections of employees' bags and vehicles after bomb threats were received, but under strict conditions and until the threats receded.

But Mr Fardell said the threat of drug and alcohol abuse to an airline 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 noted that the unions' own medical witnesses acknowledged the low level at which drugs or alcohol could cause impairment.

Mr Fardell said no test could prove impairment conclusively in a scientific sense, but the airline's testing 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 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 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 to 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.

Air NZ's drug testing

* Air New Zealand wants random drug and alcohol testing for its 10,000 employees.

* It also wants to extend existing pre-employment testing of recruits in "safety-sensitive" areas to staff on internal transfers.

* Six aviation unions are battling its plans in the Employment Court, saying there are more effective and less "invasive" ways of combating substance abuse on the job.

* The Privacy Commissioner says the airline should be clearer about its purpose in gathering personal information through testing.