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 CFMEU1

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 oil refineries.

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 evidence:

  • 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 work.

His Honour concluded that the implementation of a urine based random drug testing regime in these circumstances would be unjust and unreasonable.

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 obligations.

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 levels.


1. Shell Refining (Australia) Pty Limited, Clyde Refinery v Construction, Forestry, Mining and Energy Union [2008] AIRC 510 (25 August 2008).

2. Construction, Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Limited (Mount Thorley Operations/Warkworth Mining) [2008] AIRCFB 1159 (22 August 2008).

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