BHP introduced a stringent dual testing regime last year, adding urine testing to its existing saliva testing program.
BHP management told Fairfax Media some 20 cases of illicit drug use, the majority involving ice or cocaine had been picked up in the first nine months of the program, which requires workers at its Goonyella Riverside Mine to undergo random yet mandatory urine testing.
Based on these positive results, the global Australian plans to implement its roll expanded drug-testing regime throughout its Bowen Basin coal fleet.
However, BHP has battled the union for more than two years over the introduction of urine testing, with the Construction, Forestry, Mining and Energy Union (CFMEU) arguing such testing is an unnecessary invasion of privacy as it can pick up historical drug use which doesn’t automatically mean that the employee is unfit for work.
Ultimately, BHP let its employees decide if they wanted the testing or not, and took the results of the ballot to the Supreme Court, says Simon Clayer, Senior Associate at HopgoodGanim’s Industrial and Employment Law division.
“The Supreme Court decision allowing the mine employees vote in support of dual testing to stand is a significant outcome given the usual arguments that urine testing is an unreasonable invasion of privacy,” Clayer told HC Online.
The mining giant says tackling methamphetamine use is a priority, given a previous incident where a meth pipe was discovered in a mining truck and community concern over rising ice use.
“BHP Billiton’s request to introduce dual testing was underlined by an approach by a group of local doctors who approached mine management to report their concern about a number of mine workers they had consulted about their Methamphetamine (Ice) use,” Clayer says.
“This was the trigger for BHP Billiton to argue the introduction of urine testing was required to meet health and safety obligations under section 42 of the Coal Mining Safety and Health Regulation 2001,” Clayer says.
The focus on this section of the Regulation is fitness for work, meaning a person’s capacity to work without risk to themselves or others’ health and safety.
“Many things can affect fitness for work, with drugs being only one,” Clayer says.
“Others include stress, depression, anxiety and fatigue.”
He says tests for use of drugs or alcohol do not definitively indicate impairment or fitness for work, and one of the problems with drug testing as an indicator of use is the detection time.
“For example, alcohol testing is immediate and detects current levels of alcohol in the system, so it is able to indicate some level of impairment,” Clayer says.
But other drugs can be detected in the system for days and sometimes weeks after the drug has been used, depending on how much and how often it has been used.
“Ice, for example, can be detected in saliva and blood for up to 12 hours, in urine for up to five days after use and in the hair up to 90 days after use,” he says.
This means that users may return a positive test, depending on the type of test used, even when they have no drugs in their system or have not used for some time.
However, employers should ensure that the purpose of testing should be to deter drug use, in order to create a safe workplace rather than to “catch” people using drugs, Clayer says.
He says a common mistakes workplaces make is to place too much focus on drug and alcohol use, rather than on impairment and fitness for work.
“Dual testing regimes are not common, primarily because urine testing is argued to be an unreasonable invasion of privacy given that it may return positive results for drug use outside of work hours,” Clayer says.
“There are certainly advantages and disadvantages with each type of drug testing method, and HR professionals must always consider their employees’ privacy when undertaking testing,” he says.
He recommends employers seeking to introduce dual testing regimes base this decision on health and safety benefits, which should significantly outweigh any privacy detriments.
“Given the limitations of drug testing to reduce use or harm in the workplace, to be effective a workplace policy needs to be part of a broader healthy workplace solution that considers drug and alcohol use, mental health, fatigue and other impacts on fitness for work,” Clayer says.
Mining giant BHP Billiton is spearheading a campaign to crack down on methamphetamine use amongst its workforce amid growing concerns over employee drug issues.