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
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
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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guide to the subject matter. Specialist advice should be sought
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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