Rachel spoke on Legalise Cannabis Victoria’s motion to progress recommendations on workplace drug testing. The current workplace drug testing model is punitive and discriminates against medicinal cannabis patients.
In 2023, Rachel participated in the Inquiry into Workplace drug testing, which was initiated by a motion moved by Legalise Cannabis Victoria. Recommendations were handed down subsequent to this inquiry, that are yet to be implemented by the Government.
Wednesday the 30th of July
Victorian Legislative Council
Rachel Payne (South-Eastern Metropolitan):
This motion calls for recognition that the current workplace drug testing regime here in Victoria discriminates against people who take prescribed medications, including medicinal cannabis.
As a member of the Legal and Social Issues Committee I was part of the inquiry into workplace drug testing in Victoria, an inquiry that was off the back of a motion by Legalise Cannabis Victoria in 2023. In this inquiry we examined the legislative and regulatory framework for alcohol and other drug testing in workplaces. We found that existing AOD testing methods largely focus on testing for presence rather than testing for impairment, making them ineffective in preventing risks to workplace health and safety. In fact – and I am sure many in this chamber will recall this – during that inquiry process we heard from many unions that represent workers who disclosed that they are actually not reporting incidents in the workplace out of fear of getting drug tested. So, it has the alternate effect of deterring people from reporting workplace safety issues and incidents because they are fearful of getting a drug test, which is the total opposite of what they are trying to achieve. We also found that under the current testing regime, unimpaired employees face the risk of disciplinary action and loss of employment for taking a prescribed medication, including medicinal cannabis. And finally, we found that Victoria’s current laws governing AOD testing are outdated and inconsistent and result in uncertainty for both employers and employees.
From these findings, it can be no surprise that the committee recommended several changes to the workplace drug testing regime. These include that:
(a) drug testing should only be undertaken in the context of a comprehensive AOD policy and support framework, developed between employees, unions and employers within a workplace relations context;
(b) the government amend:
(i) the Occupational Health and Safety Act 2004 to regulate AOD testing;
(ii) the Equal Opportunity Act 2010 to prevent discrimination against people who have a medical condition or are taking a prescribed medication;
(c) WorkSafe update its guidelines and introduce a compliance code to provide a regulatory framework for AOD in the workplace …
The motion before us today calls on the government to promptly progress these important reforms.
This inquiry confirmed our worst fears. Workplace drug-testing practices in Victoria are discriminatory, disorganised and outdated and lack proper safeguards for employees. The committee’s final report was tabled on 27 August 2024, giving the government until February 2025 to issue a response. It is now the end of July, five months after the deadline, and we are no closer to understanding when this government will respond to, much less progress, these important reforms. In trying to encourage the government to respond to this report, we have been handballed from department to department. Where issues are complex and extend across several departments, you would think this would be reason for unity and greater resourcing, but unfortunately it just appears to be a reason to say it is someone else’s job, and it is ticked off the list. While these recommendations are handballed between departments, workers suffer – the same workers that this government claims to represent.
Particularly close to my heart is the amendment recommended to the Equal Opportunity Act 2010 that would ensure people living with a disability who are taking a prescribed medication are protected from discrimination. This is vital reform, particularly for those who have lost their job simply for trying to do the right thing and disclosing to their employer that they are a medicinal cannabis patient, and we have heard many cases of that actually happening. It is those people who were front and centre of the committee’s work; we listened to their experiences with workplace drug testing and medicinal cannabis.
To that end the committee conducted a survey to gather evidence on these issues, and we received 487 responses. Forty-eight per cent of participants that responded to the survey agreed that their employment had been affected by using medicinal cannabis. They cited stigma among colleagues, limited job opportunities, concerns over random drug testing, fears of being fired for disclosure and losing the ability to drive. Alarmingly, 276 of the people surveyed had been prevented from using medicinal cannabis altogether.
While we cannot know the circumstances of each case and the reasons for the prevention, all too often we know that this is a decision made from the top down. Employers need to meet employees where they are at, have an open mind about why they are being prescribed medicinal cannabis and discuss how appropriate accommodations can be made. The survey found that a failure to do so leads almost half of people to use other medications to replace medicinal cannabis. For some this means instead of using medicinal cannabis to manage pain, they are using other medications, like benzodiazepines, which have a much greater range of side effects.
The committee asked people who declared themselves to be subject to testing in their workplace what industry they work in. It was surprising and concerning to discover that people reported workplace drug testing in industries like retail, tourism and events and education. These findings are symptomatic of a broader issue identified in this inquiry: employers being left to test workers for alcohol and other drugs in the absence of an enforceable AOD framework. The most common industries highlighted in the survey were building and construction and transport and logistics.
It is difficult to have a conversation about workplace drug testing without recognising the relationship it has with Victoria’s driving laws. This government’s medicinal cannabis driving trial will be completed early next year, and as we understand it, the government will use the data it collects to inform changes to Victoria’s road safety laws and definition of impairment. We already know that presence does not equal impairment. They have changed the laws in Tasmania and the sky has not fallen in, and there is no need to wait. When medicinal cannabis patients take their medication as prescribed and are not impaired, they should be able to drive. We do not have prohibitions on people driving while on heavy opioids, and yet even trace amounts of medicinal cannabis are illegal.
My colleague David Ettershank has spoken to the recommendations of the inquiry in detail. I would like to focus on the stories of people who bravely shared their experiences with the committee, many of whom were women who have been prescribed medicinal cannabis. One woman was prescribed medicinal cannabis after dealing with several months of insomnia that left her barely functioning mentally, emotionally, socially and physically at work. Medicinal cannabis helped her finally get a deep sleep with no after-effects. When suffering from insomnia, she was constantly terrified of the dangers she would cause, and her medication now rids her of this fear. Yet many employers would prefer an employee with crippling insomnia over one who is a medicinal cannabis patient.
Another woman shared her fear of not being able to advance from her current position to higher duties because of the medication she uses. She rightly acknowledged that people who take addictive prescription medications are not subject to the same level of scrutiny. We heard about women being denied jobs that they would have loved because their medication meant they would test positive to cannabis, not because they were impaired or unable to do their job.
Medicinal cannabis and women’s health are deeply intertwined, and I myself am a medicinal cannabis patient for pelvic pain symptoms, endometriosis and perimenopause. Too often women are shut out of holding positions of power in workplaces, and it is shameful that current workplace testing practices are also contributing to ingraining this kind of inequality in our workplaces. Our current approach relies on a one-size-fits-all punitive response and leaves employees without clarity or support.
The reality is workplace AOD policies should be focused on fostering a relationship of trust between employees and employers and, where necessary, support people to seek help. That is why we call on this government to progress the important reforms highlighted in the inquiry into workplace drug testing in Victoria, because we can do better.
Council divided on motion:
Ayes (20): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt
Noes (13): Melina Bath, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Joe McCracken, Nick McGowan, Rikkie-Lee Tyrrell, Richard Welch
Motion agreed to.
Related:
> Inquiry into Workplace Drug Testing in Victoria – Rachel Payne
> Workplace Drug Testing Inquiry – Rachel Payne
> Employees prescribed medicinal cannabis sacked for taking legal medication – Rachel Payne
External:
> Protect Patient Rights – David Ettershank
> Reports – Inquiry into workplace drug testing in Victoria – Parliament of Victoria
