HR Masterclass 2023 Series wrap-up

Article by Chris Lowe, Senior Associate - Peak Legal & Workforce

This year, Peak Services, in partnership with Local Government Association of Queensland (LGAQ and Brighter Super, have travelled the state delivering the HR Masterclass 2023 Series across six locations: Brisbane, Cairns, Livingstone, Longreach, Townsville and Charleville.

The focus of the Series was “Mitigating the Risks of Managing Employees”.  We have found that this is an area that all Councils are having to deal with on a regular basis. 

The topics were thought provoking and eagerly debated amongst attendees.  These included:

• Managing risk during performance and conduct processes
• Medicinal cannabis
• Managing PID & CCC complaints
• Update on amendments to the Sex Discrimination Act
• LGAQ Advocacy Update
• Superannuation Update presented by Brighter Super

Of particular interest to Councils were the many complicated issues surrounding the use of medicinal cannabis.  Many Councils were experiencing more and more employees seeking to use medicinal cannabis in the treatment of injuries and illnesses.

A common myth or misconception among employees in particular is that if you have a prescription for cannabis (or marijuana), your employer cannot prevent you from taking it or prevent you from working if you are taking it.

Whilst it is somewhat correct that your employer cannot prevent you from taking medical cannabis, as an employer, Councils still have health and safety obligations and where there is a risk to health and safety, Councils must take steps to eliminate such a risk (so far as is reasonably practicable). This may include standing an employee down until such time as they can present a negative result, or in some circumstances, termination of employment.

The time THC, the active ingredient in cannabis, can remain in your system varies depending on the person and the testing method. THC generally may be detected in blood or saliva up to 24 hours after last use, but can even be up to as much as 72 hours after last use depending on the person, use, dose etc. Urine and hair tests have a longer detection window, being anywhere up to 90 days after last use.

One of the most common issues that we come across in this space is the issue of “impairment”. An employee will seek to argue that they are not currently impaired and should not be prevented from working as they may have taken their prescribed cannabis a day or so earlier or over the weekend. The difficulty with this scenario is that there is currently no testing available for impairment. Drug testing can only confirm the presence of THC (based on Australian standards) which may mean that an employee is currently impaired. Ultimately, the mere presence of THC presents a risk to health and safety, and it is currently our recommendation that a zero-tolerance approach should be taken in almost all circumstances whereby an employee should not be permitted to attend work if they cannot provide a negative result.

A zero-tolerance approach to THC is not uncommon. For example, in Queensland there is a zero-tolerance approach for drug driving where it is an offence to drive with THC in your system, even if it’s prescribed by a doctor. This is also important to keep in mind from a health and safety perspective as most employees drive to and from work. If an employee is not able to return a negative result for THC, they should be directed that they are not to drive home. If driving a vehicle is a part of an employee’s role, then the presence of THC would make them unfit to perform their role.  

As this is an emerging area and with a number of cases still pending in the Courts, it will be an ongoing issue to keep an eye on for the rest of 2023 and moving in to 2024, specifically on what approach Courts will take in regard to issues of discrimination.

Peak Services current recommendation is that Councils should be reviewing their drug and alcohol policies to ensure the language used is sufficiently flexible and non-discriminatory to ensure you are able to meet your health and safety obligations.

Another very well-received part of the Masterclass Series were the afternoon general roundtables.  Councils were keen to bring up topics and issues  that were causing the very overworked HR professionals to loose sleep.  Having experts in the field available to discuss and throw ideas around was very helpful.

We found that whilst Councils operate in a variety of regional and city locations, many Councils were facing similar issues in regard to attraction and retention and it was great to have everyone in a room together to share ideas to assist in attracting and retaining employees. It is certainly an issue that the LGAQ is aware of and working with Councils to improve and assist.

Councils also used the session to ask questions on how to manage difficult and unique scenarios when conducting investigations or performance management processes. For example, what to do when an employee goes on an extended period of sick leave or submits a bullying complaint, which all led to great conversations. Ultimately, just because an employee takes sick leave or makes a complaint, doesn’t necessarily mean that an investigation or performance management process should be put on hold. Each case however needs to be assessed on its facts. If you have any questions, please feel free to reach out to the LGAQ IR Helpdesk. The Helpdesk is a service available to all Councils who hold LGAQ membership – it provides Councils with experienced advice on issues that they might be struggling with or issues that they might just want someone to let them know they are on the right track.  

Another common theme that came up was that employees at the supervisor or middle manager level were often lacking in the necessary skills to supervise and/or manage, where everything is either directed to HR or not dealt with which can ultimately make the situation worse. This lack of skills is generally not down to the employee but rather that they find themselves being promoted into the role with little to no experience or training. Peak Services has developed a workshop for employees at the supervisor and middle manager level to upskill and inform on issues related to performance management and complaint handling. If you think that any of your employees might benefit from such training, please reach out.

The Team thoroughly enjoyed getting out and about and meeting up with familiar faces and also welcoming new faces.  The process of putting together  next year’s series has begun, and we would welcome any feedback or suggestions for topics or locations!  Our aim is to reach as many Councils as possible and provide an informative and enjoyable day for those who attend.