Drug Test Options Still Causing Angst

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited [2015] FWC 2384 (8 April 2015)

In yet another case involving a union complaining about drug test methods, the Fair Work Commission (FWC) has sided with employers, preferring ‘lives over leisure’ in settling the case.

The case involved an argument about a company’s insistence that it use either urine or saliva testing methods. Initially the company had wanted urine only sampling, but after negotiations with the union, agreed to establish a policy which included both methods. But the union still did not want urine testing and took its complaint to FWC.

In settling the matter, the FWC acknowledged the urine testing method tended to show up usage of prohibited drugs three or four days prior to the test. This, the union had argued, did not demonstrate impairment at the test time, which after all was the whole point of the testing regime; to prevent accidents at work when a person is under the influence of a drug. Implicit in the union’s position was that the employer was intruding into the private lives of employees.

But the FWC was unmoved, saying the presence in a person’s body of prohibited substances was the point of the policy, and their private lives took a back seat to site safety in any case. The FWC also pointed out, and endorsed, the expert evidence which indicates urine sampling is much more attuned to detect long term usage of prohibited substances, such that if the saliva tests were the only way, a chronic drug user could nevertheless escape notice.

This case assists the debate about drug test methods in the workplace. Many employers operate under the misapprehension that drug testing needs to be sanctioned by awards or enterprise agreements before it can be instituted. This is not so, and the testing method used depends on the circumstances of the workplace and the risks to safety. Employers should take heart from this decision that FWC will support them if their policies are relevant and applied fairly.