November 2014 Alcohol and other drugs
Consuming alcohol and using drugs adversely affects a person’s behaviour and performance. Since 2010, coroners’ reports on maritime fatalities have shown that 9 out of 17 deceased commercial fisherman returned a positive result for alcohol and illicit drug use. While substance impairment may not have been the direct cause of the fatality, the presence and potential harm from alcohol and drug use and impairment to workplace safety is a concern. At present, Maritime NZ has the following checks in place to support a Person Conducting a Business or Undertaking (PCBU) to ensure that alcohol and drug abuse is removed or minimised as a hazard in the maritime industry.
The checks are:
- Fit and proper person determination.
- Non-SOLAS safety management systems.
- Safety audit inspection.
While these assessments are not restricted to checking for alcohol or drug matters, each step provides an opportunity to ensure that appropriate procedures are in place to remove alcohol consumption or drug impairment as a hazard in the workplace.
Fit and proper person determination
The MTA requires the Director of Maritime NZ to undertake a fit and proper person assessment for any person making an application for a maritime document. If an applicant shows prior convictions for alcohol or drug offending, or other information that causes Maritime NZ to believe the person may not be fit and proper to have responsibility for matters covered by the maritime document, Maritime NZ may require the applicant to show why they should be determined as fit and proper.
Non-SOLAS safety management systems
Maritime NZ’s regulatory and compliance role in relation to drug and alcohol use is in the areas of safe operation of ships and health and safety in the workplace. This is mainly through issuing maritime documents (as a form of entry control) and enforcement under the MTA and the Health and Safety at Work Act 2015 (HSWA).
Under the MTA, the dangerous operation of a ship – which could be a result of alcohol or drug impairment – is an offence. HSWA requires a Person Conducting a Business or Undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of its workers. The information required in any of the non-SOLAS safety management systems (for example in a Maritime Transport Operator Plan (MTOP), Safe Operational Plan (SOP), safety case and specified limits permit) covers the operator’s entire operation, to ensure that any safety risks are identified and managed.
As part of an MTOP or SOP assessment, Maritime NZ will check that there is an appropriate drug and alcohol policy and procedure to ensure that steps are in place to address this hazard. Failure to have systems in place to effectively detect and prevent seafarers operating while impaired by alcohol or drugs could mean that an application for a maritime document (for example a Maritime Transport Operator Certificate) may be declined.
Maritime NZ will audit the safety management system to check that the safety management plan is followed and appropriate records are kept.
Failure to follow the safety management system may result in Maritime NZ using one or more of a variety of compliance tools, including prosecution or revocation of the maritime document.
Safe practice tips
1. Building an alcohol and drug-free culture
Workplace policies and prevention strategies can help to change culture around drug and alcohol use.
All maritime sectors – large and small – can benefit from an agreed policy on alcohol and drug misuse. This policy should form part of the operation’s overall health and safety management system.
Encouraging a culture where crewmembers look out for each other is important. If a crewmember suspects another crewmember is under the influence of alcohol or other drugs at work, they should feel it is necessary to report their concerns to their manager or a health and safety representative. Crewmembers should be made aware that ‘covering for their mate’ will put everyone at risk and that raising these concerns is not ‘dobbing in a mate’.
It is important not to jump to conclusions when people display possible signs or symptoms of alcohol or drug use. These signs may be due to other reasons, such as health issues.
2. Prescription drug use
Some prescription drugs can cause impairment. When a crewmember is on medication and a side effect is fatigue, the crewmember should feel they are able to discuss this with their manager. This will give their manager the opportunity to reassess the crewmember’s duties and determine whether restricted duties may be appropriate while on medication.
3. Developing an alcohol and drug policy
Every workplace is unique, therefore a one-size-fits-all alcohol and drug policy will not be suitable. It may be useful to consult with staff when preparing this policy as it can generate team buy-in. A PCBU must take all reasonable measures to make sure that crew are trained in and familiar with their drug and alcohol policy.
Consider the following when developing an alcohol and drug policy:
- banning consumption, possession, manufacture, sale, buying or transfer of illegal drugs banning unauthorised use, consumption, possession, manufacture, sale or buying of legal drugs while at work
- banning unauthorised use, consumption, possession, manufacture, sale or buying of alcohol while at work
- having a fair and reasonable process for a crew member to tell their manager about alcohol and drug dependency or work-related situations contributing to or involving alcohol or drug abuse
- setting out drug and blood alcohol content levels that will breach the workplace’s drug and alcohol policy
- having a fair and transparent procedure for alcohol and drug testing
- setting out what happens if an operator returns a result that breaches the policy during a drug and alcohol test
- set out what happens if a crewmember breaches the drug and alcohol policy.
4. Drug testing
Under the MTA, there are no specific requirements relating to drug testing in the workplace. Drug testing will depend on the workplace, with the exception of seafarers on STCW vessels.
When preparing an alcohol and drug policy, it is suggested that drug testing should be considered:
- for crewmembers whose roles have a direct impact on the safety of others
- when there is a potential health and safety risk – for example when workers work in a safety sensitive area
- when a crewmember shows signs of being affected by drugs
- when there has recently been a workplace accident or near miss.
For more information on the laws on drug testing, see Appendix A: Laws on drug testing in the workplace (Ministry of Business, Innovation and Employment).
Information of interest
Signs and symptoms of drug and alcohol use
Work within the maritime sector requires alertness, accuracy and coordination. Eliminating or minimising any use of drugs and alcohol will decrease the chance of injury in the workplace.
There are many other effects associated with alcohol or use of other drugs, for example:
- blurred vision
- slurred speech
- intense emotional highs and lows
- drowsiness and falling asleep at work
- sudden aggressive or violent behaviour
- lack of inhibition, judgment or self-control
- lack of coordination or impaired coordination and/or reflexes
- hangovers, including headaches, shaking, vomiting and nausea.
Some other signs that may indicate someone is under the influence are:
- ‘near miss’ incidents
- frequent absenteeism and/or lateness
- difficulty relating to others.
The NZ Drug Foundation provides a more detailed explanation about the general effects specific drugs may have on an individual. For more information, visit the alcohol and drug information pages on the NZ Drug Foundation website: https://www.drugfoundation.org.nz/resources/
Laws on drug testing in the workplace – Ministry of Business, Innovation and Employment
What are the laws surrounding drug testing in the workplace?
There is no specific employment related law that deals with drug testing in the workplace.
Whether workers can be tested for drugs in the workplace will depend on a variety of factors. The following are examples of factors that may be taken into account but should not be taken as a detailed guide, as each case will be different.
- The industry in which they work and the type of work they do
Whether a worker’s work directly impacts the safety of others may affect whether it will be reasonable to drug test that worker. Positions with that potential are more common in some industries than others.
- Whether there is a potential health and safety risk
The Health and Safety at Work Act 2015 places a duty on a PCBU to ensure, so far as is reasonably practicable, the provision and maintenance of a work environment that is without risks to health and safety. This may sometimes justify drug testing. This is more likely to be the case if a worker works in a safety sensitive area, shows signs of being affected by drugs, or has recently been involved in a workplace accident or “near-miss”.
- Privacy considerations
A worker’s right to privacy in relation to personal information under the Privacy Act 2020 and common law may need to be taken into account, particularly when considering sample collection procedures, the method of analysis, and the handling of test results.
- The effect on basic individual rights
Relevant laws to consider may include the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (although the New Zealand Bill of Rights Act 1990 only applies to acts done by certain PCBUs). Even if those laws do not make it unlawful for a PCBU to require an worker to undergo drug testing they may influence whether the requirement is reasonable.
- The details of the proposed testing policy
Depending on the circumstances, random testing may be harder to justify than testing of specific workers for specific purposes, for example where an worker’s ability to perform their job has the potential to affect the safety of others.
- The provisions of the employment agreement
If an employment agreement gives a PCBU the right to require workers to undergo drug testing then, provided the provision in the agreement is reasonable and does not contravene the protections contained in any relevant laws, it is more likely that the PCBU will be able to require drug testing. Similarly, it will be difficult for a PCBU to introduce drug testing if that right is not contained in the relevant employment agreement, unless the worker gives the PCBU informed consent.
If a PCBU suspects that a worker is using drugs, then as a first step it is advisable for both parties to try and resolve the issue by talking about the problem. If this is not successful either party may choose to seek mediation assistance through the Ministry of Business, Innovation and Employment.
The Privacy Commission provides guidance on the application of the Privacy Act, including the collection, use and disclosure of personal information, which would include information collected by a PCBU through drug testing.
Original source content - Safety Bulletin Issue 30, November 2014: Alcohol and other drugs.