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 impairment.

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 saliva.

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 and unreasonable.

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