Changes to requirements for drug and alcohol testing programs
Changes to requirements for drug and alcohol testing programs
The requirements for accredited railway operators' drug and alcohol testing programs have changed as follows:
Random testing programs
Accredited railway operators, except heritage operators, must conduct random testing, in which 25% or more of the operator’s railway employees are tested for drugs and alcohol per annum. The random testing program must be targeted on the basis of an assessment of the risks to the safety of railway operations of railway employees carrying out railway safety work under the influence of drugs and alcohol. (Refer to section 7.3(a) of the Guidelines.)
Heritage operators have been exempted, because implementing a random testing program may impose considerable costs on these operators, many of which have small numbers of railway employees or limited operations. These operators will be targeted by ITSRR’s random testing program.
The aim of random testing is to deter railway employees from abusing drugs and/or alcohol.
Reasonable cause testing
Accredited railway operators must implement arrangements for testing railway employees where the operator has reasonable cause to believe they are under the influence of drugs and/or alcohol. (Refer to section 7.3(b) of the Guidelines.)
Post-incident testing
Accredited railway operators’ drug and alcohol programs must include arrangements for testing railway employees involved in an accident or irregular incident. (Refer to section 7.3(c) of the Guidelines.)
The new clause 20A of the Regulations requires that testing must take place after the following types of incidents (“prescribed incidents”), unless the railway operator provides a “reasonable excuse” for not testing.
The Regulations define a prescribed incident as:
- a collision between trains;
- a collision between a train and a person;
- a collision between a train and a road vehicle or plant equipment;
- a derailment of a train;
- a breach of a rail infrastructure owner’s safeworking rules; or
- such other incident that ITSRR may, by notice in writing to the operator of a railway, declare to be a type of prescribed incident in respect of that railway.
A reasonable excuse may include:
- logistical difficulty with testing within the 3 hour limit.
NB. Distance may not necessarily be regarded as a reasonable excuse. Contingency plans should address the need for testing in remote locations.
Railway operators may conduct post-incident drug and alcohol testing after other incidents, if considered appropriate.
Testing in accordance with the regulations
All random, targeted and post-incident testing of railway employees must be conducted in accordance with the Rail Safety (Drug and Alcohol Testing) Regulation 2003. (Refer to section 7.3(d) of the Guidelines.)
Previous arrangements allowed testing to be conducted in accordance with either the Regulations or a registered industrial agreement.
Testing in accordance with the Regulations will achieve consistency in testing standards and procedures and uniformity in the execution of ITSRR’s drug and alcohol prosecution policy.
Drug and alcohol testing on persons not carrying out railway safety work, such as for pre-employment, health assessment or rehabilitation purposes, are not subject to the requirements of the Regulations.
Confirmatory testing
Confirmatory testing must be conducted:
- in the event of a positive alcohol breath test, unless there is a reasonable excuse for not doing so (section 3(e) of the Guidelines); and
- in the event that an initial urine sample analysis indicates the presence of drugs (section 3(f) of the Guidelines).
A new clause 17(5) of the Regulations provides that, if initial testing of a urine sample indicates that the urine contains a drug or drugs, a confirmatory analysis of the sample must be conducted by an analyst at an approved laboratory
Confirmatory testing will ensure legally acceptable standards of accuracy and fairness.
Railway operators should ensure confirmatory urine tests of positive urine tests are undertaken, and make all reasonable efforts to conduct confirmatory breath analysis in the event of a positive alcohol breath test.
Results of pre-commencement urine tests
The results of urine tests conducted before a railway employee commences duty may not be used in criminal proceedings for the offence of undertaking railway safety work under the influence of drugs. (Refer to clause 8(5) of the Regulations)
This change means that pre-commencement urine tests are treated in the same way as pre-commencement breath tests and breath analyses.
Notification to ITSRR of positive and refused tests and provision to ITSRR of statistical reports on drug and alcohol testing activity
Under previous arrangements, railway operators were requested to provide this information to ITSRR, in accordance with a general requirement in section 63 of the Rail Safety Act 2002 to provide relevant safety information.
Requirements have been formalised for railway operators to notify ITSRR of positive and refused drug and alcohol tests, and for railway operators to provide ITSRR, if requested, with statistical reports on drug and alcohol testing activity. (Refer to clause 29 of the Regulations.) In this regard, ITSRR requires railway operators (other than heritage operators) to provide quarterly reports on drug and alcohol testing activity.
Railway operators are also required to notify ITSRR of any breaches or potential breaches of clauses 21 or 23 of the Regulations, which deal with interfering with test results (clause 21), or interfering or tampering with or destroying samples (clause 23).
All drug and alcohol notifications and quarterly reports should be faxed to ITSRR on 8263 7256 or notified to ITSRR at the following email address:
danotifications@transportregulator.nsw.gov.au
The forms are available on ITSRR's website at www.transportregulator.nsw.gov.au