In Future, only oral fluid testing will likely be allowed.
Why?
1. Less Invasive
2. Detects recent / on-the-job drug misuse…vs. historical.
In a decision released on 25 August 2008 the Australian
Industrial Relations Commission determined that an employer should
– subject to certain conditions – employ an
oral fluid method of testing their employees for drugs and alcohol,
rather than urine sampling, on the basis that the former was more
reasonable as less invasive.
Three days earlier, a full bench of the Commission determined
that another employer was entitled to stand down workers who
refused to submit to urine based testing.
The decisions highlight the increasing prevalence of drug and
alcohol testing in the workplace on health and safety grounds, and
the later decision acknowledges recent advances in testing
technology.
Shell Refining (Australia) Pty Ltd, Clyde Refinery v.
CFMEU
Shell planned upon changing their safety policies relating to
testing for drugs and alcohol at its Clyde Refinery and Gore Bay
Terminal in New South Wales.
The union on site, the Mining and Energy division of the CFMEU,
were concerned that the new policy unduly invaded employees’
privacy and initiated dispute proceedings in the Commission. The
union argued that, whilst it supported testing when done in a fair
and just manner (on safety grounds), it was of the view that
testing should be for recent use of drugs and alcohol. They argued
that oral fluid testing was more likely than urine testing to
produce evidence of recent drug/alcohol use demonstrating
impairment. Urine testing on the other hand would produce evidence
of drug use over a long period, with no relationship to present
impairment, and for that reason was an unnecessary incursion into
employees’ private lives.
Shell argued that oral testing was far less sensitive than urine
testing and would lead to the rapid realisation by those using
drugs that the chances of being detected were relatively low. They
argued that urine testing is far more likely to uncover patterns of
drug use by individuals which may lead to levels of impairment and
other safety concerns in the workplace. Also, Shell argued that
even when drugs are no longer detectable by way of oral fluids
testing, they may continue to impair a worker.
Senior Deputy President Hamberger stated that the question
before the AIRC was whether it would be unjust or unreasonable for
Shell to implement a urine testing regime that has a wide window of
detection and which interferes with the private lives of employees,
when there is another testing method available which is more
focused and yields results more able to depict actual impairment
and does not detect drugs that have been used in the past and which
would not affect the employee at work. The Commission found that to
implement such a regime on this basis would be unjust and
unreasonable. Two qualifications to this position were imposed:
1. Currently, no Australian laboratories are accredited for oral
fluid testing under the relevant Australian Standard and that Shell
could not be expected to implement an oral fluid testing system
until a laboratory was accredited;
2. There are drugs (such as benzodiazepines) for which the
Australian Standard does not have target concentration levels and
thus Shell could not be expected to implement an oral fluid based
regime until an agreement could be reached between stakeholders
regarding the drugs to be tested for and appropriate target
concentration levels.
The Commission noted that previous tribunal decisions in
Australia had justified random urine based testing on safety
grounds, but that since oral fluid testing regimes have become
available and an Australian Standard has been developed, these
should be preferred.
The Commission rejected Shell’s argument that oral testing
was not accurate, certifiable, reliable, repeatable or consistent
because the argument was based on on-site testing rather than
laboratory testing. The AIRC also found that Shell’s argument
that oral testing tested a more limited range of drugs was not
consistent with evidence led by the union’s expert witness (who
was accepted on this point). The Commission concluded on the
evidence before it that oral fluids testing would be sufficient, as
significant impairment only occurs several hours subsequent to the
ingestion of drugs.
CFMEU v. Coal & Allied Mining Services Pty Limited (Mount
Thorley Operations / Warkworth Mining)
In the Mount Thorley case the employer had introduced a new drug
and alcohol policy at two open cut mines. The CFMEU objected to the
policy in 2005, as it required a person to undergo urine testing
and be observed throughout the whole testing process; a process the
union argued was offensive and undignified. The parties resolved
that dispute in early 2006 upon the basis that employees would
continue to undergo urine tests until an Australian Standard was
developed for saliva testing.
The Standard was introduced in Australia in September 2006 but
the employer did not move away from urine testing. The CFMEU
subsequently informed the employer that, from May this year, its
members would refuse to submit to urine testing. The employer
responded by informing its workers that those employees who refused
to submit to testing would be stood down without pay on the
assumption that they would have yielded a positive result,
consistent with the terms of the employer’s drug and alcohol
policy.
The CFMEU initiated proceedings in the Commission for orders
that the employer cease engaging in unlawful industrial action ie,
by locking out workers who refused to comply with the testing
policy.
The Commission accepted that the employer was compelled to have
a drugs and alcohol policy in order to discharge its safety
obligations and that the 2006 agreement to move to saliva testing
could not affect this. It concluded that the employer’s threats
of stand downs were premised upon ensuring safety at the mines and
compliance with statutory duties. In those circumstances the
company’s actions could not amount to a lock-out or other
industrial action of the kind necessary to attract the
Commission’s jurisdiction to make a stop order.
What now?
Watch this space.
Potentially, random testing systems involving urine sampling
will become more difficult to justify on a longer term basis in
favour of oral fluid testing. Either way, safety issues will
continue to justify urine based sampling systems and related
activities by employers unless and until they can satisfactorily
gear up to change to oral fluid testing (where that is possible and
appropriate).
Whether or not employers will continue to be able to justify
urine based testing systems for cause (rather than random testing
systems) or generally in particular circumstances remains to be
seen. Employers will have to continue to monitor scientific
advancements in testing systems and revise their own processes and
procedures accordingly where that is indicated. In a perfect world,
where less invasive procedures are available without compromising
the efficacy of safety systems and testing outcomes, these should
be preferred to more intrusive and wider ranging testing
methods.
Personal privacy issues are likely to become more significant in
this area, and generally, over time. In early August the Australian
Law Reform Commission published a report recommending wide ranging
reforms to Australia’s privacy laws including, among other
things, removal of the ‘employee records exemption’
currently provided for in the Privacy Act. These reforms will
probably also drive, to some extent, the look, feel and focus of
testing systems in the future.
