Fair Work decision dents employer push for urine tests

by Astrid Wilson15 Aug 2012

Employers looking to test the urine of their employees have been dealt a blow following a full bench decision by Fair Work Australia (FWA).

The decision in the appeal against an earlier controversial FWA ruling yesterday found that NSW-owned Endeavour Energy may not conduct urine tests for drug-use on its employees, as it had wanted to under its new health and safety framework.

The original decision found such tests were “unjust and unreasonable” because they could detect drug use from days earlier, and the latest appeal upheld the decision to only allow oral swab testing, which generally only picks up drug taking in the preceding hours – this is a better test of impairment, the arbitrator said.

Debate over the best methods for drug testing is highly contested in a range of industries, and unions have argued that urine testing unfairly infringes on workers’ private lives. Fair Work agreed, and in the original ruling, senior deputy president of FWA, Jonathan Hamberger, said urine tests were unjust because a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely.

Yet Endeavour Energy has not ruled out another appeal. A spokeswoman for the company told Fairfax they would consider the safety implications of the decision before it decided whether to appeal again. “Our advice to date has been that urine testing, and not oral swab testing, is the most accurate and effective way to detect the foreseeable risk of an employee being unfit for work due to chronic drug use,” she said. “Endeavour Energy's top priority is for all employees to return home safely at the end of each work day and not be exposed to harm from chronic drug users in the workplace,” she added.

Before the decision was made, the peak body for employers in the resource industry, the AMMA, said the previous decision by Fair Work Australia (FWA) to only allow saliva-based drug tests is contradictory to previous rulings by the arbitrator. But the full bench decision may now set a precedent for employers across the country.

In the tribunal hearing referred to by the AMMA, which involved HWE Mining, FWA ruled that urine testing was more accurate and less likely to produce false negatives. “The contradictory decisions are not helping employers gain confidence in their ability to properly manage drug and alcohol issues, particularly when the experts have shown saliva testing is more likely to produce false negatives, meaning some workers significantly impaired under the influence of drugs will not be detected,” Steve Knott from the AMMA said.

 

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COMMENTS

  • by employer who supports urine tests 15/08/2012 3:21:12 PM

    Recently, a positive urine drug test lead to finding drugs in the employee's possession at work and uncovered a long term drug habit/problem. They still have their job, but the problem is now being appropriately and safely managed. My question is, how can we determine the effect of long term use (and the employee's ability to work safely) if we can only use saliva results, which are often incorrect? I have known of heavy amphetamine users who have passed a saliva test, yet completely incapable of working safely. As an employer we have a responsibility to ensure fitness for work, yet one of the very tools we can use to pin down a drug dependency issue may be taken away. Unless very regular saliva tests are done, employees who are a risk to themselves, the public and colleagues may be able to maintain both their employment and their drug habit. Drug use is illegal, and it is a fair and reasonable expectation that an employee completely refrains from illegal activity. Any alternative ideas?

  • by Graeme - Specialist in AOD management 22/08/2012 11:59:49 PM

    Without the advantage of reading the full decision, it appears the case was poorly argued and should not be seen as precedent. The key issues are deterring and detecting "drug taking behaviour" for which there is good evidence to justify employer activity (not impairment for which the evidence is weak) and dealing with people fairly. The 3D's of AOD management.

  • by AK 23/08/2012 1:36:31 PM

    ITs okay if you are an aviation organisation undertaking a Safety Sensitive Aviation Activity. As per CASA regulations you can undertake Urine tests for D&A testing.

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