There is a fine line to be drawn when randomly testing
for evidence of drugs and/or alcohol impairing an employees'
fitness for work. An employer is often criticised for entering the
realm of an employee's private life. Urine based testing
methods have been criticised for detecting drugs and alcohol which
may have been ingested by the employee in the previous days (such
as the weekend) which may not impair their work performance. New
oral fluid testing is a more accurate method of testing for
impairment and therefore gauging an employee's fitness for
This dispute arose as a result of concerns that CFMEU had with
certain aspects of the drug and alcohol policy (D&A Policy)
that Shell wished to introduce as its Clyde Refinery and Gore Bay
Terminal. Specifically, the use of urine testing devices in
'random drug and alcohol testing' (RDT) in the D&A
policy. This case concerned a decision made by the Australian
Industrial Relations Commission (AIRC) under an alternative dispute
resolution procedure agreed to by the parties.
The role of the AIRC was to consider whether it would be unjust
or unreasonable for Shell to:
Implement RDT of operators under its D&A Policy using urine
as opposed to oral fluid testing.
Apply RDT under its D&A Policy to operators at Clyde
Refinery and Gore Bay Terminal unless such testing is applied to
all Shell employees at those two locations.
Apply RDT under its D&A Policy to operators at Clyde
Refinery and Gore Bay Terminal unless such all employees of
contractors engaged at those two locations are subject to such
The AIRC found, based on the expert evidence submitted,
Significant impairment to perform work functions only occurs
for a few hours after the ingestion of drugs.
While both oral fluid and urine testing will usually pick up
anyone who has taken drugs in the previous few hours (and thus may
well be impaired), urine testing will also pick up employees who
have ingested drugs over the previous few days and are thus
unlikely to be impaired at the time of testing.
Urine testing will not indicate when the drugs were taken.
The employer has a legitimate right (and indeed obligation) to
try and eliminate the risk that employees might come to work
impaired by drugs or alcohol such that they could pose a risk to
health and safety.
Beyond that the employer has no right to dictate what drugs or
alcohol its employees' take in their own time.
Oral fluid testing is a much more focussed method to indicate
actual impairment of an employee which does not detect the use of
drugs that would have no consequential effect on the employee's
performance at work such as will urine based testing methods.
There were, however, two qualifications placed on the use of
oral fluid testing over current urine testing practices:
1 Shell cannot reasonably be expected to implement a random drug
testing system based on oral fluids until sufficient laboratories
have been accredited.
2 Oral fluid testing does not accurately detect certain drugs
(such as benzodiazepines). Shell should not be expected to
implement an oral fluids based regime until it has the agreement of
the union and the laboratory it wishes to use on what other drugs
it wishes to test for and what would be an appropriate target
Until these two qualifications were satisfied, it was not
unreasonable for Shell to continue current urine testing
The decision of the AIRC (in a formal sense) has no status as a
legal precedent as it is akin to a private arbitration agreed to by
the parties and only has binding effect on the parties
However, there are some practical steps that can be taken by
employers to be prepared to respond to this issue should a concern
be raised by employees or a union.
Review your D&A policy in light of the viability of oral
Investigate the current status of accredited oral fluid testing
Investigate whether oral fluid testing is therefore a viable
alternative to current urine testing methods.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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