For the first time, the Full Bench of the Fair Work Commission
has endorsed an employer's right to enforce a drug testing
regime that incorporates both random saliva and
urine testing, in an important decision which gives employers more
scope to manage safety risks in the workplace (Construction,
Forestry, Mining and Energy Union ? Construction and General
Division v Port Kembla Coal Terminal Limited  FWCFB
Although the Full Bench allowed the CFMEU's appeal, it still
concluded that a policy that required employees to undergo
both forms of testing was reasonable, given the deterrent
value of the testing and its role in allowing the employer to
identify and manage safety risks at the workplace.
Its position has been that a drug enforcement policy based only
on urine testing is unjust and unreasonable, as employers do not
have the right to intrude on employees' privacy by imposing
sanctions on them related to their drug use outside of working
hours that does not necessarily affect their capacity to perform
their job safely.
New position: saliva and urine testing can be OK
Initially, Commissioner Cambridge found that employees'
privacy concerns were outweighed by the need to maintain a safe
workplace where high-risk work was performed: "a blunt
distillation of the contest in this case and its determination can
be described as a choice between private lives or saving lives and
I have opted for saving lives".
He found that a regime with both forms of testing was more
effective, because it was more likely to detect both employees who
were impaired at the time of testing, and employees whose capacity
to work safely may be affected by long-term drug use.
While the Full Bench accepted that the Commissioner had erred in
his interpretation of the expert evidence on drug testing and
actually set aside his decision, it still came to the same
conclusion that it was not unjust or unreasonable in the
circumstances to implement a drug testing procedure using
The employer has a statutory duty to ensure, so
far as reasonably practicable, the safety of its employees and
contractors; the Full Bench saw the proposed drug testing regime as
part of the employer's attempt to discharge this duty.
It paid particular attention to the fact that the
testing regime was random, which added to the
regime's deterrent value ? it would be harder for employees to
take steps to try to avoid detection, as they would not know which
method would be used, or when.
The Full Bench also gave significant weight to the
employer's case management approach to
non-negative test results. Employees who tested positive were not
automatically subjected to disciplinary action; other options were
considered, such as rehabilitation, counselling or access to the
employer's Employee Assistance Program.
Implementing a drug testing regime for saliva and
While the Full Bench ultimately agreed with the use of both
testing methods, this should not necessarily be taken as an
endorsement of this approach in every case.
The Full Bench emphasised that its decision was based on the
employer's particular circumstances. These included:
a statutory duty to ensure, so far as reasonably practicable,
the safety of its employees and contractors;
a workplace where high-risk work was performed
the random nature of the testing, giving it high deterrence
the fairness of the employer's response to a positive
Given these caveats, employers intending to implement a drug
enforcement policy involving both forms of testing should not
assume this decision gives them carte blanche. It does, however,
mean they can review their circumstances to see if random dual
testing could be a reasonable method of managing the risks of
employees' drug use, and seek professional advice.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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