Opal’s Drug Policy Changes Blocked: The Importance of Employee-Focused Consultation and Communication

HBA Consulting regularly advises clients on workplace change, from minor policy updates to whole-of-business redesign. A critical aspect of this advice is the communication and consultation strategy. As a business owner or leader, you can run your business as you see fit and make changes when needed, so long as they are lawful.

However, workplace changes that significantly affect employees must be approached from a genuine consultative perspective. At a minimum, for consultation to be considered genuine, an employer must:

• notify employees who might be affected by the proposed changes (and their representatives) and discuss the proposed changes with them as soon as possible after a decision is made
• provide them with written information about the changes, how they might affect employees, and any measures the employer will put in place to prevent or reduce any adverse effects
• promptly consider any matters raised through the consultations.

Changes to workplace policies and procedures, such as those recently attempted by Opal Packaging (as summarised below), point to the need to provide a clear rationale – focusing on the ‘why’ and ‘what’ questions relating to the proposed change. ‘Why’ is the employer seeking to make the changes, and ‘What’ will the proposed changes mean for employees should they be implemented?

The Fair Work Commission (FWC) recently blocked a proposed update to Opal Packaging's Alcohol and Other Drugs (AOD) policy, citing the company’s failure to provide employees and unions with all the “relevant information” regarding the changes. While the revisions aimed to improve the existing drug and alcohol policies in the workplace, Opal’s failure to engage in proper consultation ultimately derailed its efforts.

The Proposed Changes

Opal’s health and wellbeing manager proposed three key changes to the AOD policy:

• Shiftingfrom blanket site-wide testing to random testing of 10% if employees at locations with more than 50 staff
• Removing breathalysers from worksites and eliminating the associated self-exclusion provisions. Previously, employees who tested above 0% blood alcohol content (BAC) could self-exclude from work
• Changing the treatment of employees using prescription or over-the-counter medications. Under the revised policy, those who produced a non-negative test result would no longer be allowed to continue working while awaiting a confirmatory test

While these changes addressed health and safety issues, the FWC ruled that Opal’s lack of communication with its employees, unions, and health representatives rendered them unreasonable.

Lack of Consultation and Transparency

The FWC’s decision hinged on Opal’s failure to provide workers and their unions with comprehensive information regarding the rationale behind the policy changes. While Opal did present the adjustments to its employees and hold discussions, union representatives felt the consultation process was tokenistic. The Australian Manufacturing Workers Union (AMWU) criticised the proposed random testing process as inadequate and claimed Opal did not conduct formal risk assessments before introducing the new policy.

Moreover, employees expressed concerns about Opal’s handling of medical conditions. Under the revised policy, workers were required to disclose medical information and medications they were using, regardless of whether or not they impaired job performance.

Opal’s Missed Opportunity

One of the critical points raised by the FWC was Opal’s delay in providing the tracked changes version of the policy to workers and union representatives. By failing to do so earlier in the process, the company deprived its workforce of the opportunity to express their views and offer feedback before the proposed changes were set to take effect.

The FWC noted that providing relevant information earlier – along with risk assessments and other supporting documents – could have allowed employees to identify potential improvements to the proposed changes. Opal’s failure to engage in this type of dialogue was deemed a violation of its obligations under the Model Work Health and Safety Act, which mandates thorough consultation on health and safety matters.

What Happens Next?

The FWC ruled that while the changes were “logical”, they could not be implemented until Opal remedied the deficiencies in its consultation process. The Commission recommended that Opal undertake a more comprehensive consultation process, which includes:

1. Providing workers and their representatives with the rationale behind the proposed changes
2. Supplying detailed analyses such as cost-benefit assessments, risk assessments, and industry practice comparisons
3. Engaging in meaningful discussions with employees and unions, allowing sufficient time for feedback and questions.

If Opal can address these shortcomings, it may be allowed to implement policy changes after further consultation.

The Importance of Open, Timely and Employee-Focused Consultation

This case underscores the critical importance of transparent communication and proper consultation in workplace policy updates, especially those concerning health and safety. When employees and their unions are involved early in the process, businesses are more likely to implement changes that are compliant with legal standards and better received by the workforce.

At HBA Consulting, we specialise in helping businesses navigate the complex landscape of workplace policy changes. Whether you’re updating health and safety protocols or addressing compliance with regulatory requirements, our HR and IR consulting services focus on fostering an inclusive and collaborative workplace environment through well-planned and implemented consultative and change management processes that ensure your business remains compliant using a people-first approach.

By working with us, you can avoid the pitfalls of inadequate consultation and ensure that your workforce feels heard, respected and engaged.