Andrew Tobin - Partner
In a decision released on 25 August 2008 the Australian Industrial Relations Commission determined that an employer should – subject to certain conditions – employ an oral fluid method of testing their employees for drugs and alcohol, rather than urine sampling, on the basis that the former was more reasonable as less invasive.
Three days earlier, a full bench of the Commission determined that another employer was entitled to stand down workers who refused to submit to urine based testing.
The decisions highlight the increasing prevalence of drug and alcohol testing in the workplace on health and safety grounds, and the later decision acknowledges recent advances in testing technology.
Shell Refining (Australia) Pty Ltd, Clyde Refinery v. CFMEU
Shell planned upon changing their safety policies relating to testing for drugs and alcohol at its Clyde Refinery and Gore Bay Terminal in New South Wales.
The union on site, the Mining and Energy division of the CFMEU, were concerned that the new policy unduly invaded employees' privacy and initiated dispute proceedings in the Commission. The union argued that, whilst it supported testing when done in a fair and just manner (on safety grounds), it was of the view that testing should be for recent use of drugs and alcohol. They argued that oral fluid testing was more likely than urine testing to produce evidence of recent drug/alcohol use demonstrating impairment. Urine testing on the other hand would produce evidence of drug use over a long period, with no relationship to present impairment, and for that reason was an unnecessary incursion into employees' private lives.
Shell argued that oral testing was far less sensitive than urine testing and would lead to the rapid realisation by those using drugs that the chances of being detected were relatively low. They argued that urine testing is far more likely to uncover patterns of drug use by individuals which may lead to levels of impairment and other safety concerns in the workplace. Also, Shell argued that even when drugs are no longer detectable by way of oral fluids testing, they may continue to impair a worker.
Senior Deputy President Hamberger stated that the question before the AIRC was whether it would be unjust or unreasonable for Shell to implement a urine testing regime that has a wide window of detection and which interferes with the private lives of employees, when there is another testing method available which is more focused and yields results more able to depict actual impairment and does not detect drugs that have been used in the past and which would not affect the employee at work. The Commission found that to implement such a regime on this basis would be unjust and unreasonable. Two qualifications to this position were imposed:
1. Currently, no Australian laboratories are accredited for oral fluid testing under the relevant Australian Standard and that Shell could not be expected to implement an oral fluid testing system until a laboratory was accredited;
2. There are drugs (such as benzodiazepines) for which the Australian Standard does not have target concentration levels and thus Shell could not be expected to implement an oral fluid based regime until an agreement could be reached between stakeholders regarding the drugs to be tested for and appropriate target concentration levels.
It was held that until the above qualifications were satisfactorily resolved, it would not be unreasonable for the company to continue a urine based testing regime on an interim basis. Once the qualifications were satisfied, any random testing should be carried out by way of oral fluid based testing.
The Commission noted that previous tribunal decisions in Australia had justified random urine based testing on safety grounds, but that since oral fluid testing regimes have become available and an Australian Standard has been developed, these should be preferred.
The Commission rejected Shell's argument that oral testing was not accurate, certifiable, reliable, repeatable or consistent because the argument was based on on-site testing rather than laboratory testing. The AIRC also found that Shell's argument that oral testing tested a more limited range of drugs was not consistent with evidence led by the union's expert witness (who was accepted on this point). The Commission concluded on the evidence before it that oral fluids testing would be sufficient, as significant impairment only occurs several hours subsequent to the ingestion of drugs.
CFMEU v. Coal & Allied Mining Services Pty Limited (Mount Thorley Operations / Warkworth Mining)
In the Mount Thorley case the employer had introduced a new drug and alcohol policy at two open cut mines. The CFMEU objected to the policy in 2005, as it required a person to undergo urine testing and be observed throughout the whole testing process; a process the union argued was offensive and undignified. The parties resolved that dispute in early 2006 upon the basis that employees would continue to undergo urine tests until an Australian Standard was developed for saliva testing.
The Standard was introduced in Australia in September 2006 but the employer did not move away from urine testing. The CFMEU subsequently informed the employer that, from May this year, its members would refuse to submit to urine testing. The employer responded by informing its workers that those employees who refused to submit to testing would be stood down without pay on the assumption that they would have yielded a positive result, consistent with the terms of the employer's drug and alcohol policy.
The CFMEU initiated proceedings in the Commission for orders that the employer cease engaging in unlawful industrial action ie, by locking out workers who refused to comply with the testing policy.
The Commission accepted that the employer was compelled to have a drugs and alcohol policy in order to discharge its safety obligations and that the 2006 agreement to move to saliva testing could not affect this. It concluded that the employer's threats of stand downs were premised upon ensuring safety at the mines and compliance with statutory duties. In those circumstances the company's actions could not amount to a lock-out or other industrial action of the kind necessary to attract the Commission's jurisdiction to make a stop order.
Watch this space.
Potentially, random testing systems involving urine sampling will become more difficult to justify on a longer term basis in favour of oral fluid testing. Either way, safety issues will continue to justify urine based sampling systems and related activities by employers unless and until they can satisfactorily gear up to change to oral fluid testing (where that is possible and appropriate).
Whether or not employers will continue to be able to justify urine based testing systems for cause (rather than random testing systems) or generally in particular circumstances remains to be seen. Employers will have to continue to monitor scientific advancements in testing systems and revise their own processes and procedures accordingly where that is indicated. In a perfect world, where less invasive procedures are available without compromising the efficacy of safety systems and testing outcomes, these should be preferred to more intrusive and wider ranging testing methods.
Personal privacy issues are likely to become more significant in this area, and generally, over time. In early August the Australian Law Reform Commission published a report recommending wide ranging reforms to Australia's privacy laws including, among other things, removal of the 'employee records exemption' currently provided for in the Privacy Act. These reforms will probably also drive, to some extent, the look, feel and focus of testing systems in the future.
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