Police Association Loses Bid to Enforce 2017 Drug Policy Letter

The Employment Relations Authority has found that a 2017 letter from New Zealand Police gave the New Zealand Police Association no lasting right to block changes to the Police Drug and Alcohol Policy. The letter promised that a policy then being developed would be mutually acceptable, and that promise was kept when the Policy was finalised in 2019. From then on, the Authority said, the Policy itself governs how it is reviewed. That is where the case turns, because since 2023 the Policy has said that any review requires the Association’s agreement to the amendments proposed.

The Association’s claim that Police breached good faith, and its application for a compliance order, are still to be decided. The determination, New Zealand Police Association Incorporated v Commissioner of the New Zealand Police, was issued on 19 October 2026. It was decided on the papers, by agreement, and the affidavit evidence was not tested.

What happened

For some years Police and the Association worked on a drug and alcohol policy together. The 2012–2015 Constabulary collective agreement carried a memorandum recording an agreement in principle to work co-operatively on a mutually acceptable targeted drug-testing programme based on rehabilitation, and on an alcohol process that would protect the privacy of off-duty police.

The parties took the memorandum out of the 2015–2018 collective agreement. The Association understood that the commitment behind it had not changed.

In October 2016 Police circulated a draft policy and a Commissioner’s Circular on testing after a critical incident. The Association objected, both to the substance and to the fact that the Circular had been issued without agreement. The parties met in February 2017, and on 7 March 2017 Police wrote to the Association. The letter acknowledged that the parties had intended the memorandum’s provisions to continue to be honoured. It ended with an undertaking to work collaboratively in developing a Drug and Alcohol Testing Policy, and an acknowledgement that “any such policy must be mutually acceptable to both parties.”

The Policy was finalised in September 2019. It left out random testing across the wider workforce, noting that it might be added later “following further consultation and agreement.” In 2023 the parties added a review clause: any review would require consultation with the Association and the Leaders Guild “and agreement to any amendments proposed.”

In late 2025 Police began work on a substantially revised Policy. The proposals included targeted testing, random testing, a lower alcohol limit, changes to the pathways for self-disclosure, and a shift in the balance between rehabilitation and discipline. The Association met Police in November 2025 and gave written feedback in December, raising concerns and asking to discuss the proposals further.

In March 2026 Police arranged to brief the Association’s President on a “key change that will impact a previous agreement.” At that meeting, on 30 March, Police said it wanted to go ahead with the changes and planned to start consultation the following week. On the President’s account, he said the Association did not accept that Police could remove the consent requirement on its own, and that it would consider seeking an injunction.

Police released the draft Policy to the Association on 15 April 2026, without further substantive discussion, and then opened consultation with staff. The Association wrote on 20 April asking Police to confirm that it would seek the Association’s agreement to any changes. The Commissioner says that confirmation was given on 24 April: Police was committed to seeking agreement. On 28 April the Association’s counsel asked for something different, an undertaking that Police would not change the Policy without the Association’s consent. None came, and the Association filed in the Authority on 1 May 2026.

The letter was not part of the collective agreement

The Association argued that the letter restated an implied term of the collective agreement, or varied it. The Authority disagreed. The letter was not a term of the collective agreement, and it was not a variation, because there was no evidence that the requirements for varying a collective agreement had been followed.

Police had pointed to s 51 of the Employment Relations Act 2000, under which a union must not sign a variation unless it has been ratified. Police also relied on clause 1.1 of the collective agreement. That clause lets Police amend its policies from time to time, provided they stay consistent with the agreement, and requires consultation with the Association before substantive amendments affecting terms and conditions are made.

“The terms of the 7 March 2017 letter had therefore been met”

The decisive point was timing. The letter was written while a policy was still being developed, some two and a half years before one existed, and its language looked forward to that work. When the Policy was concluded in September 2019, having been developed by Police and the Association together, the letter had done what it set out to do. It said nothing about later amendments.

After 2019, the Policy governs

The Authority concluded that once the Policy had been adopted, it prevailed over the letter, and “the Policy itself provided for how Policy reviews are to occur.” The letter applied only before the Policy was concluded.

What the Authority has not decided

This was a preliminary determination on two questions: whether the letter was a binding term, and whether it created obligations beyond the 2019 Policy. Several things remain open.

The Authority did not decide what the 2023 review clause means, or whether Police is bound by it. Nor did it decide how that clause sits with Police’s power under clause 1.1 to amend policies after consultation.

It did not rule on an argument Police made about the difference between seeking agreement and obtaining consent. Police said a duty to seek agreement is a duty of process: engage genuinely, try to reach a shared position, and go ahead if that fails. A requirement to obtain consent, by contrast, would hand the other party a veto.

And it has not yet looked at whether Police breached good faith, or whether a compliance order should be made. An Authority Officer will be in touch with the parties about the next steps.

Outcome

The Association’s argument on the letter failed. No orders or penalties were made at this stage. Costs are reserved. The Member’s initial view is that costs should lie where they fall, noting that under the Authority’s practice note, disputes about the application, interpretation, or operation of a collective agreement are generally not subject to the daily tariff.

Why drug testing keeps coming back

Drug and alcohol testing is one of those workplace issues that drops off the agenda for a few years and then returns, usually when a policy is reviewed or an incident forces the question. It is easy to treat a testing policy as a health and safety document, and that is part of what it is. But a positive test leads somewhere, and very often it leads to a disciplinary process. At that point the policy becomes part of the employment relationship. The Employment Court made the point in the leading case on workplace testing, decided for Air New Zealand in 2004: even where an instruction to take a test is lawful and reasonable, any disadvantage or dismissal that follows is still judged on whether the employer acted fairly and reasonably in all the circumstances, and an employee may have good reasons for refusing a test or for returning a positive one.

The changes Police proposed show where the pressure sits. Who can be tested, and on what trigger: after an incident, on reasonable suspicion, or at random. Where the limit is set. What happens to someone who comes forward and asks for help before a test finds them. And whether the response to a positive result is treatment or discipline. Each of those changes what a test result means for a person’s job, which is why staff and their unions care about the wording as much as the principle.

Random testing is the most contested of them, and the Air New Zealand case, now more than 20 years old, is still the starting point. A full Employment Court considered the airline’s drug and alcohol policy and upheld testing on reasonable cause, after accidents and incidents, and on transfer into safety-sensitive roles. On random testing it drew a line: justified in safety-sensitive areas, where the consequences of impairment can be catastrophic, but not across the board. Deciding which roles count as safety-sensitive was for the employer, the Court said, after consultation with the unions and affected employees and on an objectively verifiable basis. It also stressed that its findings were specific to Air New Zealand and its workforce.

Two later Employment Court decisions matter more for a case like the Police one, because they turn on what the employer had already agreed. In Electrical Union 2001 Inc v Mighty River Power Ltd, the employer amended its existing policy to add random testing. The collective agreement required the employee’s consent, case by case, before the employer collected personal information about them. The Court held that the employee was entitled to refuse a random test, and that the agreement’s clauses guarded against the employer extending the policy to random testing on its own, without the union’s agreement. In Lyttelton Port Company Ltd v Maritime Union of New Zealand, decided in 2025, the policy was about general health monitoring rather than drug testing. The Court held that a policy going beyond the testing the collective agreement allowed was inconsistent with it, and that the employer’s health and safety duties did not give it a right to impose the policy anyway. It read the Air New Zealand case as a balancing exercise in which, at some point, the employee’s interests in privacy and bodily integrity become paramount.

So the question for any employer is never only whether random testing could be justified in principle. It is also what the employer has already agreed, in the collective agreement, in individual agreements, or in the policy itself. The 2019 Police Policy left random testing out altogether, pending further consultation and agreement. That line has turned out to matter, because random testing is among the things the 2025 proposals sought to add.

Testing also produces some of the most personal information an employer will hold about its people. In Mighty River Power it was common ground that a laboratory’s analysis of an employee’s urine is the employee’s personal information. The Privacy Act 2020 governs how that information is collected, used, stored, and disclosed, and a testing policy that is vague on those points will struggle when someone challenges it.

Our view

The easy reading of this determination is that old assurances do not bind an employer. That is not quite what it says. Whatever force the 2017 letter had, it was spent once the work it described had been done. What replaced it was the Policy, and the Policy now carries its own promise about how it will change. The commitment was not lost, because it moved into the document the parties built together.

For employers, the lesson starts with their own paperwork. Before relying on this case to change a policy, read the review clause in the policy you are changing. If it says changes need agreement, you may have given more away than you realised, and this determination does not tell you how far that clause will hold.

The drafting distinction is worth getting right at the start. “We will consult” is one commitment. “We will seek agreement” is another. “Changes require agreement” may be a third, and it comes closest to a veto. Police argued that seeking agreement is a matter of process rather than outcome. The Authority has not ruled on that, and we would not draft a policy on the assumption that it will accept the argument.

Good faith runs alongside all of this, whatever the documents say. Even where there is no consent right, how an employer goes about changing a policy that affects its people is part of the employment relationship. In this case Police briefed the Association on a change it said would affect a previous agreement and then, without further substantive discussion, released the draft. Whether that met the standard is now for the Authority, and we will not guess at the answer.

The same point reaches well beyond drug testing. Monitoring policies, surveillance policies, and policies on workplace AI tools tend to come with reassurances about how they will be used and how they will change. Those reassurances are commitments, and they deserve the same care as the rules themselves, because when the policy is later changed, the review clause is likely to be the first part anyone reads.

Lex Praxis advises New Zealand employers on employment law and AI governance. This article is general commentary and does not constitute legal advice. For advice specific to your circumstances, contact us directly.