The Australian Industrial Relations Commission (AIRC) has
recently foreshadowed significant developments in how employers
should test employees for drug and alcohol use.
In particular, the Commission has indicated that once certain
issues are resolved, oral fluid testing rather than urine testing
should be the preferred method.
Shell Refining (Australia) Pty Limited v
On 25 August 2008, Senior Deputy President Hamberger of the AIRC
determined a dispute between an employer (Shell) and a union
(CFMEU) regarding drug and alcohol testing at the employer's
The AIRC was required to determine a number of issues in dispute
including whether it would be unjust or unreasonable for Shell to
implement random drug testing under its Drug and Alcohol Policy
using urine as opposed to oral fluid testing.
There was conflicting expert evidence regarding the
effectiveness of oral fluid testing. Some experts were concerned
that oral fluid testing was not effective in detecting cannabis use
(unless very recent use or in large quantities), that the
Australian Standard for oral fluid testing (AS4760-2006) lists only
11 drugs and metabolites (and not benzodiazepines - sedating drugs
known to cause impairment) and that inaccurate results were more
prevalent with oral fluid testing.
However, there was also significant expert evidence refuting
these concerns particularly where there was laboratory (as opposed
to onsite) testing of oral fluids. Shell argued that its Drug and
Alcohol Policy, including random urine testing, was required to
meet its onerous health and safety obligations.
The CFMEU argued that urine testing detects drug use rather than
recent use which is more relevant to impairment. It also
argued that urine testing was an unnecessary and unfair incursion
into employees' private lives.
Decision by AIRC
SDP Hamberger made the following findings on the expert
The key difference between oral fluid and urine testing is that
the former will detect drug use in the previous few hours, whereas
the latter will detect drug use over the previous few days
While there may be some very limited effect over a longer
period, significant impairment only occurs for a few hours after
the ingestion of drugs
The issue is which test is more likely to indicate actual
impairment and effect on the employee's performance at
His Honour concluded that the implementation of a urine based
random drug testing regime in these circumstances would be unjust
However, this finding was subject to two qualifications:
Currently, there are no laboratories accredited under
AS4760-2006 for oral fluid testing, but this is likely to be
resolved in the relatively near future
There are drugs which the employer may wish to test for (such
as benzodiazepines) which do not have target concentration levels
in AS4760- 2006. The employer should not be expected to implement
an oral fluids based regime until it has the agreement of the
unions and the laboratory on the drugs to be tested for and the
appropriate target concentration levels.
Once these issues were resolved, His Honour was of the view that
any random drug testing should be conducted using oral fluids.
It is worth noting that the decision in the Shell case came
within days of a decision by the Full Bench of the AIRC in another
matter where it indicated that the union could pursue a dispute
notification if it wanted to argue the relative merits of oral
fluid as opposed to urine testing.2
In that case, the Full Bench also accepted the argument that
testing was undertaken to meet occupational health and safety
The decision in the Shell case appears to foreshadow a shift in
what is viewed by the AIRC as a reasonable method of testing for
drug and alcohol impairment in employees.
Once the process of accreditation of laboratories to undertake
oral fluid testing is completed, there will be an expectation that
employers who undertake drug and alcohol testing in the workplace
use oral fluid testing.
This will require employers to undertake a review of their
policies and procedures to move to oral fluid testing, identify
which drugs will be tested for and the target concentration
1. Shell Refining (Australia) Pty Limited, Clyde
Refinery v Construction, Forestry, Mining and Energy Union
 AIRC 510 (25 August 2008).
2. Construction, Forestry, Mining and Energy Union v
Coal & Allied Mining Services Pty Limited (Mount Thorley
Operations/Warkworth Mining)  AIRCFB 1159 (22 August
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