In a decision released by the Full Bench of the Fair Work
Commission this week (Construction, Forestry, Mining and Energy
Union – Construction and General Division v Port Kembla Coal
Terminal Limited  FWCFB 4075), the last word was had on
the argument between the CFMEU and Port Kembla Coal Terminal Ltd
with regard to the employer's intention to introduce mixed and
random drug testing in the workplace. The decision will hearten
employers in high risk industries.
In July 2014, after consultation with the Union, the employer
announced that it would be introducing the Alcohol and Other
Drug Standard, requiring employees to undertake random urine
and saliva tests to ensure they were free of drugs and alcohol at
work. The Union filed a dispute in the Fair Work Commission
claiming the use of urine tests illegitimately interfered with the
privacy of workers and identified historical drug use that
didn't affect an employee's work capacity on the day.
The employer argued that urine testing was widely accepted at
other coal port terminals and that using both testing methods
randomly would overcome the limitations of using only one method
and act as a greater deterrent to illicit drug use and attempts to
In its initial decision, the Fair Work Commission rejected the
Union's argument, stating it was completely irrelevant if one,
or four, or more days have elapsed between consumption of the drug
and detection of it (or its metabolite) at the workplace. The
Commission also held that any discomfort or embarrassment about
providing a urine sample would be of negligible consequence if such
discomfort or embarrassment avoided death or debilitating injury
suffered at work.
The Union appealed to the Full Bench arguing the use of random
urine and saliva drug testing unreasonably intrudes into the
legitimate rights of employees by seeking to regulate private
conduct that is not demonstrated to compromise safety at work.
Ultimately the Full Bench found it was not unjust or
unreasonable for the employer to implement a dual random testing
scheme using both saliva and urine, arguing that safety at the
workplace was paramount to the Union's concerns of the privacy
For employers in high risk industries, these decisions confirm
the safety of all engaged on worksites and the employer's
obligation to ensure identified safety standards will prevail over
claims of infringement of personal liberties of employees.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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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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