A decision handed down by the Australian Industrial
Relations Commission on 25 August 2008 could bring about the
end of urine testing for drugs and alcohol in the workplace in
the near future (Shell Refining (Australia) Pty Ltd, Clyde
Refinery –v– CFMEU), if the reasoning
of SDP Hamburger is adopted by the Full Bench of the AIRC or
the Federal Court.
In his decision, he rejected the reasoning in a 10 year old
often cited precedent decision of the Western Australian IRC in
the BHP Iron Ore case. In that decision, the WA IRC found that
a random testing program using urine samples was justified on
safety grounds and was both fair and reasonable. In this case,
SDP Hamburger found that in the last decade, oral fluid
(saliva) testing has become available and an Australian
Standard for this testing has been developed. He found that it
would be unjust and unreasonable for the company to implement a
urine based random testing regime at its Clyde refinery, with
its wide "window of detection" and all that implies
for interfering with the private lives of employees. In his
view a more focussed method (saliva testing), is available
where a positive test is far more likely to indicate actual
This conclusion was based on evidence that drugs can be
detected in urine well beyond the time the drug is having a
significant biological effect. For example, the detection time
for cannabinoids in urine is 3 to 28 days, whereas for saliva
it is up to 12 hours. For methamphetamine, the detection time
is 2 to 5 days in urine compared with up to 24 hours for
The decision was subject to 2 qualifications:
(a) Firstly, at this stage, no laboratories have as yet been
accredited under the relevant Australian Standards for saliva
testing. It is understood that this will change in the
relatively near future.
(b) Secondly, there are drugs that the company may wish to
test for (such as benzodiazepines) for which the Australian
Standard does not contain target concentration levels. The
company should not be expected to implement a saliva testing
regime until it has the agreement of the union and the testing
laboratory on what other drugs it wishes to test for and what
would be an appropriate target concentration level.
Once these 2 qualifications are satisfactorily resolved, the
Commission indicated that any random drug testing should be
conducted using saliva. Until then, it would be reasonable for
the company to implement a urine based testing regime on an
interim basis only.
SDP Hamburger rejected much of the expert evidence led by
Shell, relating to the unreliability of saliva test results and
the data indicating a high level of false positives and false
negatives for cannabis in saliva testing. Instead, he preferred
the expert evidence led by the CFMEU, to the effect that saliva
testing in the laboratory brings about accurate results.
In coming to the conclusion he has, SDP Hamburger has also
effectively rejected submissions put by Shell that "acute
impairment" within a short period after ingestion or
consumption of a substance should not be the only matter of
concern for employers. It was also argued that the
"hangover" issue is significant. If there is chronic
use of drugs or alcohol, the argument was put that the employer
should be interested in this as well, as opposed to being only
interested if the employee is acutely affected by drugs or
alcohol. Otherwise, from a risk management point of view, the
approach would be very superficial. The rejection of this
submission is a significant one for all employers who operate
workplaces where employees involved in substance abuse can lead
to significant health and safety consequences.
The decision will cause angst for all employers who
currently have a random urine testing regime in place. Once the
2 qualifications outlined in the decision are satisfied,
employers can expect a rush of applications to the AIRC seeking
findings that developments in technology now mean that their
existing random urine testing regimes have now become unjust
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