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Is urine drug testing allowed?

Fair Work Australia (‘FWA’) recently handed down a decision regarding a dispute between Endeavour Energy and the Unions (CEPU NSW, USU, APE SMA) concerning the introduction of a drug and alcohol policy and procedure.

The parties agreed that the establishment of a formal drug and alcohol policy used to identify an employee’s fitness for duty was necessary. Some of the disagreements were centred around the following:

  • The type of drug testing to be used
  • The ‘cut-off’ or acceptable threshold level for Blood Alcohol Concentration (BAC) levels.

The decision

BAC issues

FWA determined in relation to the BAC limit issues that a ‘one size fits all’ approach was not necessary. It was held to be unreasonable to impose a 0.02% BAC on all employees across the board – that level should only apply to employees identified as undertaking ‘high risk activities’. All other employees should be subject to 0.05% mg/ 100ml BAC.

Drug testing method

Endeavour Energy favoured an on-site urine testing for drugs whilst the Unions preferred oral fluid testing (saliva swabs).

FWA determined after hearing expert evidence, that on-site drug testing should be carried out through the use of saliva swabs / oral fluid.

In light of its findings FWA commented that:

  • Both methods (i.e. urine / oral) are susceptible to cheating
  • The likelihood of ‘specimen adulteration or ‘substitution’ is relatively low when tests are conducted randomly
  • Australian Standards exist governing the use of both methods
  • Neither method tests directly for impairment but oral / saliva testing is potentially more capable of detecting, for example, a person under the influence of cannabis when compared to urine testing.

FWA favoured oral / saliva testing, but noted it did not so in circumstances where the testing was devoid of being so sensitive, that it picked up levels of cannabis that may be a result of an employee having ingested the substance several days earlier and thus would not affect their capacity to do their job safely at the time of testing.

FWA recommended the testing be done on the basis of AS4760 2006: the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.

Senior Deputy President Hamberger who delivered this decision made the point of saying that ‘Employer’s have a legitimate right (and indeed obligation) to try and eliminate the risk that some employees come to work impaired by drugs or alcohol such that they could pose a risk to health or safety.’ He went on to clarify that ‘Beyond [this] the employer has no right to dictate what drugs or alcohol its employees take in their own time… it would be unjust and unreasonable to do so.’

Comment

It should be noted that Senior Deputy President Hamberger’s decision is currently the subject of an appeal. His decision is not a blanket decision that should be read as being a definite answer to the ‘which method – drug test’ question or dispute that many industries have had to consider and resolve, but rather a decision which was delivered in the context of resolving a dispute between an employer and the unions concerned.

There have been a range of decisions handed down by various courts and tribunals in relation to drug and alcohol testing generally – as to their necessity, whether urine or saliva testing is preferable, whether or not requirements for drug and alcohol testing need to be included in company policies and procedures, whether or not they are mandatory and the like.

It appears that at least up until this point the decisions are being delivered on a case by case basis – the only pattern that seems to have emerged is one which supports the notion that Drug and Alcohol testing in the workplace (particularly for high risk workplaces i.e. building construction, electrical, transport and other industries) is necessary to ensure the health and safety of all employees as well as assist in discharging the heavy obligations the Work Health and Safety Laws impose on employers. It should also be noted that there are some industries in which employees are subject to drug and alcohol testing as a requirement of legislation. For example, in New South Wales legislation exists such as Rail Safety (Drug and Alcohol Testing) Regulations 2008 and Passenger Transport (Drug and Alcohol Testing) Regulation 2010. There is also legislation at the Commonwealth level, for example the Civil Aviation Safety Amendment Regulations 2008.

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