Authorised Testing Officer - Office of the National Rail Safety Regulator

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Bridging course for existing drug and alcohol
testing officers in NSW
Note: Text in red indicates changes from the previous legislation.
The material contained in this bridging course is not an official ONRSR operational guideline. This material is made available for the assistance of rail transport
operators in NSW to facilitate the training of suitably experienced staff for appointment as ‘authorised persons’ to conduct drug and alcohol tests for or on behalf of
accredited rail transport operators in NSW.
This material may not be suitable for all rail transport operators in NSW. Rail transport operators should ensure they develop and implement a training program that
is appropriate and satisfactory for their purpose, having regard to the particular railway operations for which they are accredited and their obligations under the
relevant legislation and guidelines.
ONRSR accepts no responsibility for any errors or omissions in the attached briefing material and makes no warranty as to the appropriateness of this briefing
material for any particular rail transport operator. ONRSR reserves the right to change the briefing content without prior notice.
Copyright in this briefing material vests in the ONRSR. The briefing material may be used for training purposes without reference to ONRSR, provided copyright is
acknowledged and this disclaimer is attached.
Last updated: May 2013
1
Learning outcomes
On successful completion of the briefing program you should be able
to:
 Outline the legislative requirements for drug and alcohol testing,
including the offences under the Rail Safety National Law (NSW)
 Understand the changes to drug and alcohol testing practices,
including reporting responsibilities, under the Rail Safety National
Law (NSW)
 Explain your organisation’s required procedures for random,
targeted (eg “for cause/on suspicion”) and post-incident testing
 Outline notification and record keeping requirements for drug and
alcohol testing
2
Summary of bridging course content
Session to cover:
1. Role of the ONRSR
2. Overview of legislative requirements
3. Rights, roles and responsibilities
4. Random testing
5. “For cause/on suspicion” testing
6. Post-incident testing
7. Managing notification responsibilities, record keeping and other
testing issues
3
What is the main role of the ONRSR?

Enhancing rail safety by monitoring and enforcing the relevant
legislation through:








monitoring notifications from rail transport operators of positive test results
and refusals;
monitoring monthly returns (number of tests) from rail transport operators;
monitoring notifications of any breaches of the NSW Regulation in relation to
interfering with test results, or interfering or tampering with or destroying
samples
auditing implementation of DAMPs; and
pursuing prosecutions
May appoint authorised persons or delegate this function to rail
transport operators
Issue of identity cards for authorised persons
May conduct testing
4
Overview of legislative requirements
1.
2.
3.
4.
5.
6.
Key requirements of accredited rail transport operator DAMPs
When is testing required?
Requirements for authorised persons
Who is to be tested?
Rail safety work is ……
Offences for rail safety workers
5
Key requirements
of accredited rail transport operator DAMPs

The Rail Safety National Law in NSW comprises:




Rail Safety National Law (NSW) No 82a (RSNL (NSW))
Rail Safety National Law National Regulations 2012 (the National
Regulations)
Rail Safety (Adoption of National Law) Regulation 2012 (the NSW
Regulation)
Under clause 28 of the National Regulations, the DAMP must
include the following:



a drug and alcohol policy,
systems and procedures for provision of information and education to rail
safety workers on the DAMP,
systems and procedures to ensure confidentiality of personal information
obtained from rail safety workers in relation to testing, counselling, treatment
or rehabilitation.
6
Key requirements of accredited rail transport operator
DAMPs (cont)…


details of the testing regime, including testing procedures and procedures for the
management of workers in respect of testing results
measures to be taken by the operator for:



the establishment of rules relating to the use of drugs and alcohol by rail safety
workers, and
the identification of workers who have drug and alcohol related problems and referral
of workers to assessment, treatment, counselling or rehabilitation
the obligations of rail safety workers with respect to the management of alcohol
and other drug use, and the actions that may be taken by the rail transport
operator if there is a breach of those obligations, eg





requirement for a worker to notify the operator if a worker may be impaired by
alcohol or any other drug,
the provision of education and rehabilitation measures for workers,
disciplinary action,
appeals and grievance mechanisms, and
protocols for fair procedures relating to the operation of the DAMP.
7
Key requirements of accredited rail transport
operator DAMPs (cont) …

In addition, the drug and alcohol testing regime of a rail
transport operator accredited in NSW must include the following:



random breath or urine testing of not less than 25% of rail safety workers
in each year, selected using risk management principles (does not apply
to heritage operators)
drug and alcohol testing of rail safety workers involved in a prescribed
incident within three hours of the incident, unless there is a reasonable
excuse for not doing so
written notification to the Regulator of positive test results, refusal or
failure to be tested, and interference with blood or urine samples or with
the concentration of alcohol or any other drug in a rail safety worker’s
breath, blood or urine before submitting to testing
8
Exercise 1: Key requirements of your rail transport
operator’s DAMP

Read Information Sheets #2 & 3 – “What are the key
requirements for rail transport operator DAMPs?”

Review your rail transport operator’s DAMP.

Answer the following questions:
What are the implications of these requirements for you
as an authorised person?
9
When is testing required?

Testing may be conducted on a random, targeted (eg “for
cause/on suspicion”) or post-incident basis

Testing is mandatory for prescribed incidents.

Accredited rail transport operators (except for heritage operators)
are required to conduct random breath or urine testing of not less
than 25% of their rail safety workers in each year.

Heritage operators may be targeted by the ONRSR’s random
testing program.
10
Requirements for authorised persons….




Only authorised persons may require a rail safety worker to submit to
testing.
An authorised person means a police officer, or a person appointed by
the Regulator under section 124 of the RSNL (NSW), who is a rail safety
officer, or a person who the Regulator considers has appropriate
qualifications or experience for the performance of relevant functions
under the RSNL (NSW).
Authorised persons appointed under section 124 will be issued with an
identity card by the Regulator.
Authorised persons are required to produce their identity card if
requested by a person who is required to submit to testing.
11
Who is to be tested?

Rail safety workers who perform rail safety work are to be tested under the
RSNL (NSW).

The RSNL (NSW) defines a “rail safety worker” as an individual who has
carried out, is carrying out, or is about to carry out, rail safety work. This
includes employees, contractors or volunteers.

The authority of an authorised person may be limited by the relevant
instrument of appointment, to a particular part of a participating jurisdiction, to
a particular railway or to particular rail safety workers, or otherwise.

Rail transport operators may also test other employees (not rail safety
workers) under their DAMP (but this is not required under the RSNL(NSW)).
12
Rail safety work is….
S 8 of the RSNL (NSW) provides the full definition of rail safety work:











driving or despatching rolling stock;
signalling;
coupling or uncoupling rolling stock;
maintaining, repairing, modifying, monitoring, inspecting or testing rolling stock or rail
infrastructure;
installation of components in relation to rolling stock;
work on or about rail infrastructure relating to the design, construction, repair, modification,
maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure;
installation or maintenance of a telecommunications system relating to rail infrastructure, or
of electricity supply to rail infrastructure, rolling stock or a telecommunications system;
work involving certification as to the safety of rail infrastructure or rolling stock;
work involving the decommissioning of rail infrastructure or rolling stock;
work involving the development, management or monitoring of safe working systems for
railways;
work involving the management or monitoring of passenger safety on, in or at any railway.
13
Offences for rail safety workers under the Rail
Safety National Law (NSW)

Carrying out, or attempting to carry out, rail safety work while:



the prescribed concentration of alcohol (ie any concentration of alcohol) is present in the
worker’s breath or blood – section 128(1)(a) of the RSNL (NSW)
NB In NSW, a breath test may measure the amount of alcohol in a person’s breath or blood,
expressed as the amount of alcohol in grams in 210 litres of breath or 100 millilitres of blood)
– clause 5 of the NSW Regulation;
a prescribed drug is present in the worker’s oral fluid or blood - section 128(1)(b) of the
RSNL (NSW);
so much under the influence of alcohol or a drug as to be incapable of effectively discharging
a function or duty of a rail safety worker - section 128(1)(c) of the RSNL (NSW);

Refusal or failure to be tested - sections 126(3) and 127(3) of RSNL (NSW)
and clause 21(1) of the NSW Regulation;

Failure to provide a sample of his or her own blood, oral fluid or urine – clause 21(2) of
the NSW Regulation;
Interfering with test results – clause 22 of the NSW Regulations;
Hindering or obstructing a medical practitioner or nurse - clause 23(4) of the NSW
Regulation; and
Interfering or tampering with, or destroying blood or urine samples – clause 24 of the
14
NSW Regulation.



Exercise 2: What are the legislative
requirements for testing?




Read Information Sheet #4 – “What the legislation says about
drug and alcohol testing”.
Read Information Sheet # 5 – “What are the main offences
and penalties relating to alcohol or drugs?”
Refer to your operator’s DAMP.
Answer the following questions:
What are the implications for an authorised person’s testing
practice?
15
Rights, roles and responsibilities





The obligations of accredited rail transport operators
Rail safety workers’ rights and obligations
Authorised persons’ powers, roles and responsibilities
Legal requirements – authorised persons and third party
testing service providers
Duty of confidentiality on authorised persons
16
Rights, roles and responsibilities:
The obligations of accredited rail transport
operators

Testing requirements for rail transport operators to conduct
random testing:




The rail transport operator’s DAMP must provide for the random breath or
urine testing of not less than 25% of rail safety workers in each year.
Risk management principles must be used to select rail safety workers and
to determine the type of test (breath or urine) to be conducted.
Heritage operators are not required to conduct random testing, but may be
targeted by the ONRSR’s random testing program.
Operators may conduct oral fluid testing, but this will not form part of the
25% of random testing required by clause 28(2)(a)(i) of the National
Regulations.
17
The obligations of accredited rail transport
operators continued...

Testing requirements for rail transport operators to conduct targeted
(eg “for cause/on suspicion”) testing:
 The rail transport operator’s DAMP must provide for targeted (eg “for
cause/on suspicion”) testing of rail safety workers.
 The rail transport operator’s DAMP must provide for the testing of rail safety
workers where an authorised person has a reasonable belief that the
worker might be under the influence of alcohol or a drug.
18
The obligations of accredited rail transport
operators continued...
Testing requirements for rail transport operators to conduct postincident testing:

The rail transport operator’s (including heritage operators) DAMP must
provide for the testing of rail safety workers involved in a prescribed incident
(clause 28(2)(a)(ii) of the National Regulations).

Drug and alcohol testing must take place within three hours of a prescribed
incident, unless the rail transport operator provides a “reasonable excuse” for
not doing so.

Authorised persons may also test a rail safety worker who is involved in a
prescribed notifiable occurrence (sections 126(1)(e) and 127(1)(e) of the
RSNL(NSW)) or is involved in an accident or irregular incident while carrying
out rail safety work (sections 126(1)(e1) and 127(1)(e1) of the RSNL(NSW)).
19
Rail safety workers’ rights and obligations

All rail safety workers who are about to carry out, are carrying out,
are attempting to carry out, are still on railway premises after
carrying out rail safety work, or are involved in a prescribed
notifiable occurrence, or are involved in an accident or irregular
incident while carrying out rail safety work, may be required to
submit to testing.



“About to carry out rail safety work” means the rail safety worker has left
home or a temporary residence for work but has not yet commenced work (ie
pre-sign-on).
“Attempting to carry out rail safety work” means that a rail safety worker is
available to carry out rail safety work after signing on for duty.
Under clause 6 of the NSW Regulation, results of testing for a rail safety
worker who was about to carry out rail safety work are not admissible as an
offence under section 128 of the Rail Safety National Law (NSW).
20
Rail safety workers’ rights and obligations
(continued)


Refusing or failing to undergo testing is an offence. (NB It is
a defence to a prosecution for an offence under clause 21(1) of
the NSW Regulation, if the worker was required to submit to a
sobriety assessment and was unable to comply on medical
grounds.)
Rail safety workers have the right:




to request an authorised person to produce their identity card,
to know the consequences of failure or refusal to undergo testing, and
to be advised of outcomes of testing.
Rail safety workers should be informed of:


the desirability of disclosing their use of prescription drugs;
the availability of counselling, treatment and rehabilitation.
21
Authorised person’s powers, roles and
responsibilities


Authorised persons are appointed by rail transport operators under delegation from the
Regulator, and are issued with an ID card by the Regulator.
Authorised persons may direct rail safety workers to:






undergo a breath test and/or provide a sample of urine
submit to a sobriety assessment
submit to a breath analysis at the nearest police station or such other place as the
authorised person may require
provide blood or urine samples at a hospital
undergo testing by a third party testing service provider, eg. provide urine samples to a
collecting agency or blood/urine samples to a medical practitioner/registered nurse at a
hospital
Authorised persons are protected from liability for “anything properly and necessarily
done” in the course of administering a breath test or breath analysis, conducting a
sobriety assessment or taking a sample of urine in the exercise of the functions of an
authorised person under the RSNL (NSW) (clause 20(2) of the NSW Regulation.
22
Authorised person powers, roles and
responsibilities continued…
o Authorised persons (other than police officers) must not arrest or
detain rail safety workers.
o Authorised persons must not require a rail safety worker to undergo
a breath test, assessment, breath analysis or provide a sample of
blood or urine (clause 8 of the NSW Regulation):
*
if it appears to the authorised person (because of injuries sustained by the worker)
that it would be dangerous to the worker’s medical condition,
*
3 hours after the worker carried out the rail safety work (or was due to commence
the rail safety work) to which the requisition relates,
*
after a worker, who has not been involved in an accident or irregular incident, has
ceased to be on duty on a particular day, or
*
at the worker’s home, or
*
if the worker is admitted to a hospital after an accident and the testing is against the
advice of a medical practitioner or nurse (clause 13(2) of the NSW Regulation).
23
Exercise 3: What are the rights and
obligations of those involved in testing?



Read Information Sheet #6– “What are the rights and
obligations of those involved with drug and alcohol testing?”
Refer to your operator’s DAMP
Answer the following questions:
What are the implications for an authorised person’s testing
practice?
24
Legal requirements – authorised persons and third
party testing service providers: who can do what?






Breath test: authorised person or police officer
Breath analysis: authorised person or police officer
Urine sample can be collected by: authorised person or collecting agency
under direction of an authorised person or police officer
Blood/urine sample taken at a hospital: medical practitioner or suitably
qualified registered nurse informed to do so by an authorised person or police
officer
Urine screening: on-site drug screening device (with an immunoassay
technique that meets the screening test cut-off levels listed in Table 1 of
AS/NZS 4308:2008) operated by an authorised person or collecting agency, or
screening by an analyst at an approved laboratory
Blood/urine analysis: analyst at an approved laboratory
Note:
Approved laboratory for blood samples – the laboratory at the NSW Forensic and
Analytical Science Service at Lidcombe Western Sydney Local Health District.
Approved laboratory for urine samples – a laboratory accredited by NATA for the
purposes of AS/NZS 4308:2008.
On-site urine screening procedures are not required to comply with AS/NZS 4308:2008.
25
Legal requirements –authorised persons and third
party testing service providers - hospitals

It is the responsibility of the authorised person to ensure that urine
samples taken at a hospital are dealt with in accordance with
AS/NZS 4308:2008. (It is no longer the responsibility of medical
practitioners and nurses.)

In relation to blood samples, upon the medical practitioner or
registered nurse handing the sample to the authorised person, the
authorised person must
 immediately place the sample in an approved security box and
lock the box, and
 arrange for the sample to be submitted to an approved
laboratory for analysis.
26
Duty of Confidentiality on Authorised
Persons (RSNL s244)
Under section 244 of the Rail Safety National Law (NSW), it is
an offence to disclose without lawful authority any information
or document obtained while exercising any power or function
under the RSNL.
Maximum penalty:
(a) In the case of an individual - $10 000
(b) In the case of a body corporate - $50 000
27
Exercise 4: Duty of Confidentiality on
Authorised Persons (RSNL s244)
Scenario:
Tanya is a person authorised to conduct drug and alcohol testing under RSNL.
She conducts drug and alcohol tests on a rail safety worker Dan, the driver of a
train involved in a spectacular derailment in which miraculously no one is killed
or injured. Dan tests positive for alcohol. He is fully cooperative but during the
testing breaks down sobbing. He tells Tanya he was drinking heavily the night
before the accident. He was depressed because his wife has left him and his
teenage son has been charged with a drug-related offence.
There is intense media interest in the incident. Dan is subsequently charged.
Tanya gives evidence of the test results at the hearing. Dan is convicted and
fined.
28
Exercise 4: Duty of Confidentiality on
Authorised Persons (RSNL s244) continued…


Read Information Sheet #7 Duty of Confidentiality on
Authorised Persons (under RSNL s244)
Read the following following scenarios and decide whether the
following scenarios are lawful or prohibited.
Part 1
Before the court hearing:
Tanya’s husband says, “I heard the driver was drunk – is that
right?”
29
Exercise 4: Duty of Confidentiality on
Authorised Persons (RSNL s244) continued…
Part 2
Before the court hearing:
ONRSR investigators ask for the test results.
30
Exercise 4: Duty of Confidentiality on
Authorised Persons (RSNL s244) continued…
Part 3
Dan is convicted. The same night the conviction is reported
on the TV news. Tanya’s husband says “That’s the bloke you
tested – Gee – he got off lightly – people could’ve been
killed.” Tanya then tells her husband about Dan’s wife and
son.
31
Random testing

NSW-specific requirements
32
Random testing
NSW operators:
 must conduct random breath or urine testing of not less than
25% of rail safety workers in each year (does not apply to
heritage operators)
 use risk management principles to determine how rail safety
workers will be selected for testing and the type of testing
(breath or urine) to be conducted
 may conduct oral fluid testing, but this will not form part of
the 25% of random testing required by clause 28(2)(a)(i) of
the National Regulations
33
“For cause/on suspicion” testing

Under clause 14(2) of the NSW Regulation, an authorised
person who has a reasonable belief that, by the way in which
a rail safety worker was acting, the worker might be under
the influence of alcohol or a drug, may require the worker to
provide a sample of the worker’s blood or urine:


if the worker does not return a positive breath test, and
either refuses to submit to a sobriety assessment, or after the
assessment is made, the authorised person has a reasonable belief
that the worker is under the influence of alcohol or a drug.
34
“For cause/on suspicion” testing



There needs to be more than a hunch or hearsay before a rail
safety worker can be required to undergo “for cause/on
suspicion” testing.
The most common ways of forming a reasonable belief or a
suspicion is through observations and recognising possible
indicators of being under the influence, and from disclosures or
allegations made.
In recording testing results, the focus should be on recording
how or why an authorised person formed a reasonable belief
that a rail safety worker was under the influence of alcohol or a
drug.
35
Post-incident testing

Definition of “prescribed incidents”

NSW-specific requirements
36
Post-incident testing requirements

Unless a rail transport operator (including heritage operators)
provides a “reasonable excuse” for not testing, testing must
take place within 3 hours after a prescribed incident:








a collision between rolling stock
a collision between rolling stock and a person
a collision between rolling stock and a road vehicle or plant equipment
the derailment of rolling stock
a breach of the rail infrastructure manager’s network rules or
any other incident that the Regulator may declare in writing to a rail transport
operator to be a type of prescribed incident in respect of the operator’s railway
operations.
Both drug and alcohol testing is required after a prescribed
incident in NSW.
Authorised persons may also test rail safety workers involved in a
prescribed notifiable occurrence, or an accident or irregular
incident in NSW.
37
Exercise 5: Review of rail transport operator
testing procedures



Reflect on the testing requirements for each type of testing:
random, ‘for cause/on suspicion’ and post-incident.
Refer to your operator’s DAMP.
Answer the following questions:
What changes may be required in your rail transport
operator’s testing procedures?
What are the implications for an authorised person’s testing
practice?
38
Managing notification responsibilities,
record keeping and other testing issues

Notification to the ONRSR

Drug and alcohol testing monthly return

ONRSR contact details
39
Notification to the ONRSR


Rail transport operators are required to notify the ONRSR of positive test results
as a Category B notifiable occurrence on the OCCURRENCE NOTIFICATION
FORM – within 72 hours after becoming aware of the results.
Rail transport operators in NSW are also required to notify the ONRSR on the
NOTIFICATION FORM - Drug and Alcohol Testing in NSW - within 72 hours of:
positive test results;
refusal or failure to undertake a test; and
any breaches of the NSW Regulation in relation to interfering with test results, or
interfering or tampering with or destroying samples
The authorised person should confirm that the rail safety worker was:
 carrying out, or about to carry out, or attempting to carry out, rail safety work at the
time of the test, or
 still on railway premises after carrying out rail safety work, or
 involved in a prescribed notifiable occurrence, or
 in an accident or irregular incident while carrying out rail safety work.
-

40
Drug and alcohol testing monthly return

Rail transport operators (including heritage operators) are
required to notify the ONRSR on a monthly basis of the total
number of drug and alcohol tests undertaken.

ONRSR FORM –Periodic Information Monthly Return is used.

Data is collected on the total number of drug and alcohol tests
undertaken for a range of different worker categories.
41
ONRSR contact details
Level 1, 75 Hindmarsh Square
Adelaide SA 5000
PO Box 3461, Rundle Mall
Adelaide SA 5000
P: (08) 8406 1500
F: (08) 8406 1501
E: [email protected]
42
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