Today’s question comes from a volunteer with the NSW RFS.  Although it involves the RFS it is more an industrial law issue rather than a matter of emergency law but I’ll have a go.

My correspondent says:

Alcohol and drug screening

Recently at the RFS 2024 State Championships the RFS issued documentation they stated, ‘PLEASE NOTE: random breath testing will be conducted during competition times on both Saturday and Sunday’.

 To the best of my knowledge the NSW RFS does not have a Drug & Alcohol Screening Policy or Protocols in place. However, information relating to the use of drugs and alcohol can be found in the RFS Code of Conduct which covers the usual expectations as one might expect. Additionally, the RFS Training Academy has similar information contained within the State Training Academy Handbook.

 No RFS document provides any structure into alcohol and drug screen, nor has the RFS consulted with either paid or voluntary members about the introduction of any screening process.

 The only reference material that I can locate is the Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 created by WorkCover NSW (WorkSafe NSW).

 Can you provide any comment in regard to the legal governance about Alcohol and Drug Screening in the workplace with regards to the employers’ obligations and what protections are in place for workers?

Monitoring Staff via CCTV Security

Of late there has been several incidents of RFS members staying overnight at the RFS Training Academy being pulled aside by academy staff and spoken to about returning to the academy late at night after attending venues that serve alcohol off site.

 Yet again the RFS has little documentation that provides guidance about the use of CCTV, the storage and accessing of imagery captured and the use of imagery in regard to disciplinary matters.

 What I can find is:

RFS State Training Academy Handbook; Section 15 – Security which states, ‘CCTV recordings may be used to review security breaches or behavioural matters. Information will only be released on written approval from the Director Training & Doctrine and a record of the request is to be retained on a registered file’.

Service Standard 1.1.14 Personal Information & Privacy; Legitimate use of recordings and surveillance

2.31. The recording of conversations and images is covered by several statutes and must be treated with the utmost privacy and integrity. They shall be replayed or made available only in the following situations:

a. investigation of alleged untimely or inadequate responses to fire or other incidents

b. written inquiries from the NSW Police Force, ICAC, Coroner or other investigating body

c. for the conduct of internal RFS investigations

d. training purposes when prior to recording, consent has been obtained from all parties featured in the audio or video recordings, or

e. as required by law.

 Whilst it does not refer to CCTV footage SS1.1.14 also reads

2.32. Voice recordings and transcripts of voice recordings obtained through communication systems used by the RFS shall not be used for RFS disciplinary procedures without the express written permission of the Commissioner, Executive Director People and Strategy or Director Performance and Conduct.

 It is highly likely that the staff accessing the surveillance footage are doing so without the necessary delegation (or approval) that being Manager level as per SS 1.1.14 Privacy Officer 

2.19 The designated RFS Privacy Officer is the Manager Legal.

 The Workplace Surveillance Act 2005, provides some guidance but does not appear to cover such a situation

 Section 18 Restrictions on use and disclosure of surveillance records—notified surveillance

An employer who carries out or causes to be carried out the surveillance of an employee of the employer while the employee is at work for the employer, not being covert surveillance, must ensure that any surveillance record made as a result of that surveillance is not used or disclosed unless that use, or disclosure is—

(a)  use or disclosure for a legitimate purpose related to the employment of employees of the employer or the legitimate business activities or functions of the employer, or

(b)  disclosure to a member or officer of a law enforcement agency for use in connection with the detection, investigation, or prosecution of an offence, or

(c)  use or disclosure for a purpose that is directly or indirectly related to the taking of civil or criminal proceedings, or

(d)  use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or of substantial damage to property.

 Can you provide any comment in regard to the legal governance with regards to the employers’ obligations when undertaking notified surveillance and what protections are in place for workers, especially when the worker is off duty but residing in RFS accommodations?

  1.  Alcohol and Drug Screening

I don’t think one could go past the WorkSafe publication Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 (WorkSafe NSW).  As that guide says:

The decision to use alcohol and other drug testing should be made in consultation with employees, OHS representatives and union representatives. Agreement may be sought where a risk assessment has identified that there are risks involved in undertaking certain activities whilst under the influence of alcohol and other drugs. privacy, confidentiality and the legal position of employees and management also need to be considered.

However, WorkCover recommends that alcohol and other drug testing only be implemented as part of a comprehensive alcohol and other drug program with appropriate safeguards, clear policy and procedures, and provision of education and counselling. If utilised, testing should act as a deterrent, not a mechanism to ‘catch people out’.

To compel employees to undergo drug testing it would need to be a ‘reasonable’ direction, considering the risk.  Compliance, or not, with the consultation requirements in the Work Health and Safety Act 2011 (NSW) would go some way to determining whether a direction to submit to a drug test was ‘reasonable’.

As for participants in competitions, it could be a condition of entry to the competition that participants agree to be tested. 

Where drug testing did take place there would need to be policies and procedures in place to ensure the integrity of samples and the chain of possession prior to testing to ensure that tests are not incorrectly identified or tested. There would also need to be adequate privacy protection to ensure that results were only known by those with a need to know.  There would also need to be policies and procedures on how the information will be used so people can give informed consent to the process for example a person who understands that the result may be revealed to police may decide not to submit even if it means they lose their job or cannot take part in a competition.

2. Monitoring Staff via CCTV Security

The relevant law here will be the Surveillance Devices Act 2007 (NSW) and the Workplace Surveillance Act 2005 (NSW).

The Surveillance Devices Act 2007 (NSW) s 8 provides that is an offence to install or use ‘optical surveillance devices [that is ‘any device capable of being used to record visually or observe an activity’] without consent’.  The relevant consent, however, has to come from the building owner, not the people being observed.

The Workplace Surveillance Act 2005 (NSW) s 11 says:

Camera surveillance of an employee must not be carried out unless-

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

Section 18 has been set out by my correspondent, above.

The difficulty in the context of the RFS is that, presumably surveillance at the academy is picking up both employees and non-employees (volunteers). I would however expect the RFS to treat its volunteers as it would its employees so any restrictions or limitations on what it can do with respect to its employees should be applied to its volunteers.

If that’s correct, then I don’t see why the provisions of s 18 and the limits it imposes would not apply to the RFS.  Of course, I cannot comment on whether the RFS is complying with the Act or its own standing orders, policies and procedures.

As for a person who is residing at the academy but on downtime, the Act says at s 16 says:

An employer must not carry out, or cause to be carried out, surveillance of an employee of the employer using a work surveillance device when the employee is not at work for the employer unless the surveillance is computer surveillance of the use by the employee of equipment or resources provided by or at the expense of the employer.

The question then is whether a person at the academy is ‘at work’ even during their down time.  Section 5 says:

For the purposes of this Act, an employee is “at work” for an employer when the employee is-

(a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time,

An employee who is at the academy is still at work when they are ‘off duty but residing in RFS accommodation’.  As argued above volunteers are not employees but if the RFS can continue to have video surveillance of their employees there is no reason to think they cannot also have it for their volunteers. 

Conclusion

Drug and alcohol testing should be adopted after consultation under the Work Health and Safety Act 2011 (NSW) and in accordance with the WorkSafe publication Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 (WorkSafe NSW).

With respect to video surveillance the relevant laws are the Surveillance Devices Act 2007 (NSW) and the Workplace Surveillance Act 2005 (NSW) and the RFS’ own policies and Service Standards.  I cannot comment on how well the RFS has complied with those requirements but given the information provided it would appear that the RFS is permitted to conduct the surveillance described.  My correspondent has largely answered their own question about ‘the legal governance with regards to the employers’ obligations when undertaking notified surveillance’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.