New rules on company alcohol and drugs policy

In April 2009, the National Employment Council concluded its 100th collective agreement, requiring every company to have a preventive alcohol and drugs policy in place. The agreement seeks to create greater recognition of the issue and to encourage a preventive rather than punitive approach. The agreement is an initiative of both employer organisations and trade unions as part of a general move to improve people’s well-being at work.

Role of National Employment Council

On 1 April 2009, the National Employment Council (Nationale Arbeidsraad/Conseil National du Travail, NAR/CNT) concluded its 100th collective agreement, which came into force immediately. Article 1 of the National Labour Council Act of 29 May 1952 defined the role of the NAR/CNT as follows:

  • advising a minister or the Houses of Parliament – the Belgian Chamber of Representatives (Kamer van Volksvertegenwoordigers/Chambre des Représentants) and the Senate (Senaat/Sénat) – on NAR/CNT initiatives or, at the request of these authorities, on general social issues concerning employers and workers;
  • issuing opinions on jurisdictional disputes between joint committees.

The Act of 5 December 1968, regulating the legal status of collective agreements and joint sectoral bargaining committees in Belgium, considerably expanded the NAR/CNT’s role by empowering it to conclude collective agreements that are binding on various branches of activity or all sectors of the economy. The first of this kind of intersectoral national collective agreements was signed on 12 February 1970; in 2009, about 40 years later, some 100 collective agreements of this type have been reached, excluding any revisions of previous agreements.

Agreement on alcohol and drugs policy

As already foreseen and planned in the intersectoral agreement of 2007–2008, Collective agreement No. 100 was finally concluded on 1 April 2009. It took effect on the same day and requires every company to have a preventive alcohol and drugs policy in place by 1 April 2010.

Underlying philosophy of agreement

The NAR/CNT members see a preventive alcohol and drugs policy as being part of a company’s integral health and safety policy and its general human resources (HR) management strategy. They are of the opinion that such a policy should be based on the following assumptions:

  • it is better to tackle alcohol or drug problems within a company by approaching the employees concerned about the failure in their work-related performance and behaviour, instead of focusing on their substance dependency;
  • an efficient alcohol and drugs policy applies to all employees of a company, from top to bottom;
  • a successful alcohol and drugs policy is based on four pillars – information and training, rules, procedures for acute and chronic abuse, and assistance.

Therefore, Collective agreement No. 100 aims to encourage discussion, and to prevent and deal with failure at work caused by alcohol and drugs use in companies, due to the detrimental consequences this has for both employers and employees. Because of the diverse circumstances of the numerous companies involved, the agreement does not impose one preventive alcohol and drugs policy, but rather creates a framework allowing each individual company to develop its own policy. Overall, company policies in this regard should focus on prevention and not on sanctions.

Phased implementation

The agreement requires the employer to establish the basic principles and goals of the company’s alcohol and drugs policy in a declaration of intent; this will form part of the company’s workplace rules. The policy agreement may also incorporate an optional second phase which renders such principles more concrete. For example, rules can be introduced to cover:

  • the availability or prohibition of alcohol in the workplace;
  • the bringing of alcohol or drugs onto company premises;
  • work-related consumption of alcohol;
  • procedures for investigation and action if an employee is found to be unable to perform their work owing to the use of alcohol or drugs.

Rules on testing

Collective Agreement No. 100 also lays down specific rules on the use of alcohol and drugs tests. Such tests will have to meet a number of conditions in order to remain valid.

In order to protect the privacy of an employee, the agreement strictly regulates the use of such testing. No biological or medical tests may be used. Only tests that give no exact percentage of intoxication, but just a positive or negative indication of intoxication – such as breath tests or psychomotor skills tests – are permitted. Moreover, testing cannot be used in isolation but has to be part of a package of policy implementation measures. The measures must define the rules that have to be observed when administering such tests, including the nature of the tests, the persons qualified for administering them, the times at which they can be administered and the possible consequences of positive test results. Finally, alcohol and drugs testing has to fulfil certain conditions, notably:

  • it can only be used for prevention purposes;
  • the test results cannot be used in a way that is incompatible with the prevention objective – they do not allow for sanctioning the employee concerned;
  • tests must be adequate, objective and proportional;
  • the employee concerned has to consent to the test;
  • the possibility of taking tests cannot result in discrimination between employees;
  • the processing of test results as personal data is forbidden.

Furthermore, the commentary to the agreement states that a positive test result may result only in:

  • referral for assistance from the company;
  • immediate and temporary expulsion from the workplace;
  • reassignment to another position.

Implementation with support of worker representatives

The works council (Conseil d’Entreprise/Ondernemingsraden, CE/OR) and the workplace health and safety committee (Comité pour la prévention et protection au travail/Comité voor preventie en bescherming op het werk, CPPT/CPBW) have to be informed and consulted about the alcohol and drugs policy that the employer wishes to put in place and especially about the use of tests in this regard. In the absence of such a committee, the trade union delegation has to give advice. If no trade union delegation is present at the establishment, the scheduled information and consultation takes place directly with the employees. The applicable alcohol and drugs policy that is put in place must be mentioned in the employer’s work rules and should form an integrated part of these rules.

Commentary

Although the agreement is an initiative of both employer organisations and trade unions as part of a general move to improve people’s well-being at work, the Belgian Federation of Employers (Fédération des Entreprises de Belgique/Verbond van Belgische Ondernemingen, FEB/VBO) reacted particularly positive to the accord. FEB/VBO welcomed the fact that the agreement lays down a clear set of rules determining what employers are allowed to do and what is not permitted if an employee is thought to suffer from an alcohol problem. On the trade union side, the strict rules on testing and privacy protection were defined as important elements of the agreement.

Guy Van Gyes, Higher Institute of Labour Studies (HIVA), Catholic University of Leuven (KUL)

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