Social Security (Benefit Categories and Work Focus) Amendment Bill

  • enacted
43 New sections 102B to 102E inserted
  • After section 102A, insert:

    102B Work test obligations: drug testing obligations
    • (1) The drug testing obligations referred to in section 102A(1A) are to undertake, and to pass, a drug test that a potential employer or a training provider requests candidates for employment or training to undertake, and to pass, by a specified time, and that is recognised by this Act because it is a drug test—

      • (a) of a kind described in subsection (2); and

      • (b) requested, and undertaken, lawfully (in particular, for a lawful health or safety purpose, or other lawful purpose), even though the employer or provider is not authorised or required by or under this Act to compel the candidate to undertake it.

      (2) A drug test is of a kind described in this subsection for the purposes of subsection (1)(a) if the drug test is—

      • (a) a screening drug test of the candidate undertaken without any associated later evidential drug test of the candidate; or

      • (ab) an evidential drug test of the candidate if he or she has failed any associated prior screening drug test under paragraph (a); or

      • (b) an evidential drug test of the candidate undertaken without any associated prior screening drug test of the candidate.

      (2A) A drug test undertaken by a candidate for employment or training on a request by the potential employer or training provider is for the purposes of subsection (1)(b) presumed to be requested, and undertaken, lawfully, unless the contrary is proved.

      (3) A candidate for employment or training is taken for the purposes of this Act to have failed an evidential drug test requested by a potential employer or a training provider if the candidate—

      • (a) fails an associated prior screening drug test requested by the employer or provider; and

      • (b) waives (in any manner) the evidential drug test.

      (4) For the purposes of subsection (1) (1), the chief executive may, in the absence of evidence available to the chief executive and to the contrary effect, act on information given by the potential employer or training provider to the effect that a candidate has failed a screening drug test, an evidential drug test, or both.

    102C Work test obligations: drug testing obligations on referral to opportunity of suitable employment
    • (1) This section applies to a work-tested beneficiary who has a work test obligation obligation,

      • (a) under section 102A(1)(c), to attend and participate in an interview for any opportunity of suitable employment to which the beneficiary is referred by the chief executive; and

      • (b) that, under section 102A(1A), includes the drug testing obligations under section 102B(1).

      (2) The employer providing the opportunity of suitable employment may, or may authorise the appropriate drug testing provider to, provide to the department (with or without the beneficiary's consent) the results of a screening drug test, an evidential drug test, or both if—

      • (a) that employer has (in accordance with section 102B(1) to (2A)) requested the beneficiary to undergo, and to pass, by a specified time, a screening drug test, an evidential drug test, or both; and

      • (b) the beneficiary has by the specified time failed that drug test, or both of those drug tests.

      (3) The chief executive may reimburse the employer for the actual and reasonable costs (if, or insofar as, they do not exceed the maximum reimbursement amount prescribed for the purposes of this subsection by regulations made under section 132) of a screening drug test, an evidential drug test, or both that the employer has (in accordance with section 102B(1) to (2A)) requested in respect of a work-tested beneficiary, if the chief executive—

      • (a) is provided under subsection (2) with the results of that drug test or those drug tests; and

      • (b) is satisfied that those results relate to the beneficiary, and that the beneficiary has failed that drug test or those drug tests.

      (3A) Regulations made under section 132 prescribing maximum reimbursement amounts for the purposes of subsection (3) may, without limitation, prescribe different amounts of that kind based on either or both of the following:

      • (a) different kinds of drug tests:

      • (b) the same or different kinds of drug tests having been provided by different providers or by different agents or employees of the same or different providers.

      (4) Costs of a screening drug test requested (in accordance with section 102B(1) to (2A)) by an employer in respect of, and failed by, a work-tested beneficiary cannot be reimbursed under subsection (3) if the beneficiary has undertaken, and passed, an associated later evidential drug test requested (in accordance with section 102B(1) to (2A)) by that employer.

      (5) Costs reimbursed under subsection (3) are a debt due to the Crown from the beneficiary for the purpose of section 85A(e).

    102D Work test obligations: drug testing obligations: challenging sanction based solely on failing screening drug test
    • (1) This section applies to a beneficiary if—

      • (a) an employer or a training provider has (in accordance with section 102B(1) to (2A)) requested the beneficiary to undertake a screening drug test; and

      • (b) the beneficiary has failed that screening drug test; and

      • (c) that employer or training provider has not (in accordance with section 102B(1) to (2A)) requested the beneficiary to undertake an associated later evidential drug test because the beneficiary has failed that screening drug test; and

      • (d) a sanction is to be imposed on the beneficiary (the beneficiary's benefit is to be reduced, suspended, or cancelled), under section 117, based on the beneficiary having failed that screening drug test.

      (2) The beneficiary may dispute the sanction to be imposed under section 117 by making to the department a request that the sample taken from the beneficiary for the screening drug test be subjected to an evidential drug test.

      (3) A request under subsection (2) must be made by the beneficiary in writing in a form approved by the chief executive, and must be made—

      • (a) after the beneficiary is given under section 113 a written notice relating to the sanction to be imposed; and

      • (b) after the beneficiary disputes the reduction, suspension suspension, or cancellation (within the period for that purpose, of 5 working days from the giving of that written notice, that section 113(2)(e) requires to be stated in that written notice); and

      • (c) within a period that starts when the beneficiary disputes the reduction, suspension, or cancellation, and is a reasonable period specified by the department for the purpose.

      (4) A request under subsection (2) must include the beneficiary's consent to the department contacting the employer or training provider and a drug testing provider to arrange for the evidential drug test of the sample, and must authorise the drug testing provider that does the evidential drug test of the sample to provide to the department the results of that evidential drug test.

      (5) The department may proceed to impose the appropriate sanction as if the beneficiary had not disputed the sanction if—

      • (a) a request under subsection (2) does not include the consent and authorisation required by subsection (4); and

      • (b) that consent and authorisation is not provided in the period specified under subsection (3)(c).

      (6) If a request under subsection (2) is made to the department and includes the consent and authorisation required by subsection (4), then until the department is advised of the results of an evidential drug test of the beneficiary arranged by the department in accordance with the request,—

      • (a) any sanction imposed under section 117, and based on the beneficiary's having failed the associated earlier prior screening drug test, is suspended:

      • (b) any failure for the purposes of sections 119 and 122(2), and based on the beneficiary's having failed the associated earlier prior screening drug test, is suspended:

      • (c) the beneficiary is not liable under section 102C(5) for the actual and reasonable costs (if any) reimbursed to the employer under section 102C(3) of the beneficiary's associated earlier prior screening drug test.

      (7) The actual and reasonable costs incurred by a drug testing provider in doing an evidential drug test arranged by the department in accordance with a request under subsection (2) are payable by the department.

      (8) If the beneficiary fails an evidential drug test arranged by the department in accordance with a request under subsection (2), that failure is for the purposes of section 116B(1)(e) treated as a new failure of the beneficiary’s work test and drug test obligations.

      (9) If the beneficiary fails an evidential drug test arranged by the department in accordance with a request under subsection (2), the following are a debt due to the Crown from the beneficiary for the purpose of section 85A(e):

      • (a) the actual and reasonable costs incurred by a drug testing provider in doing that evidential drug test:

      • (b) the actual and reasonable costs (if any) reimbursed to the employer under section 102C(3) of the beneficiary's associated earlier prior screening drug test.

    102E Work test obligations: drug testing obligations: use and communication of drug test results
    • Drug test results provided under, or under an authorisation given under, section 102B, 102C, or 102D,—

      • (a) may be used by the chief executive or the department for the purposes of, or for the purposes of a review or appeal against a decision under, that section and all or any of sections 116B, 116C, 117, 119, and 122; but

      • (b) must not be used or communicated by the chief executive or the department for any other purposes.