Employees at the Port Kembla Coal Terminal will continue to be subjected to a dual method drug and alcohol testing regime after an earlier decision was upheld by the Fair Work Commission.
The dual method system employing random saliva or urine testing was contested by the CFMEU Construction and General Division in April this year, resulting in a decision in favour of Port Kembla Coal Terminal Limited (PKCT) on the basis that the benefits of using both methods of sampling significantly outweighed any privacy detriments.
The PKCT system involves choosing either urine or saliva testing on the day of a random drug test, in which all employees randomly selected would be subject to the selected test.
The CFMEU requested permission to appeal the decision set down by Commissioner Ian Cambridge in April, however that request was rejected on Wednesday by a full bench of the FWC.
In their submission the CFMEU maintained that Commissioner Cambridge had erred in several respects, including the logical inference that detection of a drug at or above the cut-off levels meant there would be some impact on a subject’s capacity to work regardless of time elapsed since consumption.
The union also said there was no evidenced link between detection levels in urine and risk to health and safety in the workplace, and that the commissioner had erred in failing to find that an employer could only legitimately require employees to submit to testing directed at detection of impairment at work.
The full bench held that saliva testing would generally identify employees who had recently taken drugs and would be likely to be impaired, and that urine testing could pick up traces of drug use over the preceding days or weeks.
Despite privacy concerns relating to urine testing and the length of time of detection, the full bench maintained that it was not unjust or unreasonable for the employer to implement the system of both urine and saliva testing.
Senior deputy president Hamberger acknowledged that earlier full bench decisions had upheld decisions by single members that the use of urine testing as opposed to oral testing was unjust and unreasonable, however in the case of PKCT both methods if selected at random had advantages that outweighed privacy concerns.
According to an expert witness brought by the CFMEU, a system in which employees did not know which method of drug testing would be used had the advantage of enhancing the deterrent value of testing by preventing workers from taking measures to avoid detection by cheating the test.
However, Hamberger also said that in an earlier case he had found that neither oral fluid nor urine testing devices were perfect, and that urine testing was not only potentially less capable of detecting impairment, but did have the disadvantage of showing positive results even if consumption had occurred several days prior.
“In the circumstances where oral fluid testing – which does not have this disadvantage – is readily available, I find that the introduction of urine testing would be unjust and unreasonable,” he said.
“Accordingly I find that the system of drug testing that should be used by the applicant for on-site drug testing should be that involving oral fluids.”
Hamberger referred to an earlier case, Shell Refining v CFMEU (2008) when he said that both parties had recognised that random testing was an intrusion on the privacy of an individual which could only be justified on health and safety grounds.
“The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health and safety,” he said.
“Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time. Indeed, it would be unjust or unreasonable to do so.”