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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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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
