A recent ruling by Fair Work Australia has found that making
employees submit to urine tests for drug use is "unjust and
unreasonable" as the tests can detect drug usage from the
weekend. This may have no bearing on an employee's ability to
do their job safely.
State-owned Endeavour Energy was seeking to introduce urine
tests for drug use as part of their duty to provide a safe
workplace to all employees. Safety is paramount when working with
electricity and there is no margin for error. Even the smallest
mistake can be fatal or cause severe and permanent injury.
Union members argued that employees could fail a urine test even
if they are not still under the influence of a particular
substance. Urine tests can show a positive result for cannabis, for
example, even if it has been a few days since an individual smoked
their last joint. THC, or Delta-9-Tetrahydrocannabinol,
the psychoactive compound in cannabis, can remain in the body for
up to 90 days. Cannabis takes longer to leave the body than most
other drugs because it is fat soluble, rather than water soluble
and is stored in an individual's fat cells. Just how long
depends on a number of factors including frequency of use, an
individual's metabolism, level of exercise and diet. While
cannabis remains in the body during this time, it no longer has the
same effects or impairments as when it was initially taken.
Fair Work Australia ruled in favour of the Union members who
argued that oral swab tests should be used instead of urine tests.
Oral swabs will only detect THC a few hours after consumption when
the user is still impaired and when their ability to do their job
will be most affected.
Drug testing of employees is becoming increasingly common in New
Zealand in certain job sectors such as aviation and mining where
the ability of employees to carry out their work safely is
paramount. The Health and Safety in Employment Act 1992 requires
employers to take all practicable steps to eliminate workplace
hazards. The introduction of testing for drugs and alcohol in the
workplace is one way in which employers can seek to meet these
In 2004, the Employment Court sanctioned drug and alcohol
testing in the workplace in NZ. In relation to Air NZ's
policies in this area, the Court held that it was lawful for
employees in "safety-sensitive" roles to be randomly
tested and for all employees to be subjected to post incident and
reasonable cause testing. Reasonable cause testing is where the
employer has good grounds to suspect that an employee's
behaviour is an actual or potential cause or source of harm to
others as a result of being affected by alcohol and/or drugs.
Workplace drug testing policies in New Zealand must take into
account the Privacy Act 1993, the New Zealand Bill of Rights Act
1990, and the Human Rights Act 1993. Any testing should be done
with the informed consent of the employees concerned. While
employees cannot be forced to provide a sample or to consent to
have a sample tested, it is usual for a company's or
organisation's policy to state the consequences and
disciplinary process following a refusal.
Unlike Australia, it appears that urine testing is still the
preferred testing method for cannabis use in the workplace in New
Zealand. In 2007, the Employment Court held that oral swab testing
was not sensitive enough to reliably and accurately detect
cannabis. Oral swab testing was criticised for returning more false
positives or false negative results than urine testing. Oral swabs
also do not reliably detect the presence of benzodiazepines. The
Court stated that the fact that a test may pick up earlier cannabis
use will have to be the subject of discussion between employee and
employer so that the degree of significance of impairment can be
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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