Posted on: Apr 29, 2014

Key Decision – Electrical Union 2001 Inc v Mighty River Power Ltd

An employer that introduced random drug testing in a policy promulgated after the collective agreement covering affected employees was entered into was not able to do anything when an employee declined to submit to a random test. The policy was unilaterally imposed and it conflicted with the collective agreement, which allowed the collection of evidence of fitness for work (where there was behaviour demonstrating lack of it) and the collection of “personal information” but only with the full consent of the employee.

This judgment by the Employment Court was reached on the basis that the privacy clause in the collective agreement was a barrier to implementation of random testing but Chief Judge Colgan discussed the ramifications of the evidence of fitness for work clause. This was stated to be subject to s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA), which enables anyone to decline “medical treatment”. The Chief Judge considered both broad and narrow interpretations of that term — ie did it include the collection of bodily samples? — and preferred the latter, though he agreed that s 21 of the NZBORA (search and seizure of the person, property etc) was probably more apt with regard to random drug testing.



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