The Australian Industrial Relation Commission (AIRC) recently found that compulsory urine drug tests were "unjust and unreasonable", and that oral fluid testing should be used instead.
The case arose when Shell Refinery (the Company) recently updated its drug and alcohol policy for its Clyde Refinery and Gore Bay Terminal. The policy required random urine drug testing for certain employees who would pose a safety risk if they were under the influence of drugs or alcohol while at work.
The matter came before the AIRC for arbitration under a dispute resolution clause in a Memorandum of Understanding between the Company and the CFMEU. Normally, the decision would have been confidential, but given the importance of the issue, the parties agreed to make the decision public.
The CFMEU took issue with the new policy, and in particular, the fact that the policy required urine testing instead of adopting oral fluid testing. The Union argued that urine testing returns a positive for drugs other than alcohol well after the employee had ceased to be affected by the drugs. Therefore this was an unreasonable intrusion into the employee's private life, as employees could ultimately be dismissed for drug use during their own time, even if they weren't affected by the drugs while at work. In contrast, oral fluid testing concentrated on recent consumption and was therefore much more connected to impairment.
The Company accepted that urine drug testing shows only the presence of a drug, not whether a person was impaired by the drug. However, they argued that oral fluid testing is not as reliable as urine testing, as it detected a lesser range of drugs, was only effective if the person had recently used drugs (even though they may still be impaired by the drug) or if they had used a large amount of drugs, and also that oral fluid testing had a higher number of false positives and false negatives. The CFMEU expert evidence disagreed with these conclusions
The AIRC preferred the expert evidence brought by the Union, in particular the evidence of Professor Olaf Drummer, Head of Forensic & Scientific Services, Victorian Institute of Forensic Medicine. The AIRC found that oral fluid testing was now sufficiently accurate for use by the Company, and was less intrusive into employees' private lives as it was much less likely to show a positive for past drug use that did not cause an impairment.
The AIRC suggested that the Company adopt random drug testing using oral fluid provided that two preliminary matters were addressed. First, the Company would need to find a suitable Australian laboratory that is accredited for oral fluid testing under the relevant standard (no laboratories are currently so accredited, although several intend to become accredited). Secondly, if it intended to test for drugs that were not covered by the relevant standard, then the Company and the CFMEU would need to agree on the target concentration levels for those drugs.
Implications for employers
The decision was not binding on the parties, and so this decision does not mean that employers will now be forced to adopt oral fluid drug testing instead of urine drug testing. However, it does signal that oral fluid drug testing is now an acceptable method of testing for drugs in the workplace, and that employers will probably come under pressure from Unions to move away from urine drug testing.
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