On 7 October 2011, the Full Bench of Fair Work Australia handed
down its decision in Wagstaff Piling Pty Ltd; Theiss Pty Ltd v
Construction, Forestry, Mining and Energy Union [2011] FWAFB
6892. In its decision, the Full Bench disagreed with findings
of the Victorian Industry Disputes Board and Commissioner Blair of
Fair Work Australia, and determined that the drug and alcohol
policy contained in the relevant enterprise agreement did not
prevent the implementation of a mandatory drug and alcohol testing
regime, despite the fact that the enterprise agreement made no
reference to drug and alcohol testing.
The facts of the case involved numerous workers who were
subcontracted by Wagstaff Piling to Theiss, who was the principal
contractor for the development of a major highway. Theiss had a
comprehensive Fitness for Work Policy (the Fitness Policy), which
included requirements for monthly random mandatory drug and alcohol
testing of its employees and subcontractors. Upon
