25 Aug 2015

Drug testing both saliva and urine can be OK, says Full Bench of the Fair Work Commission

For the first time, the Full Bench of the Fair Work Commission has endorsed an employer's right to enforce a drug testing regime that incorporates both random saliva and urine testing, in an important decision which gives employers more scope to manage safety risks in the workplace (Construction, Forestry, Mining and Energy Union ‒ Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075).

Although the Full Bench allowed the CFMEU's appeal, it still concluded that a policy that required employees to undergo both forms of testing was reasonable, given the deterrent value of the testing and its role in allowing the employer to identify and manage safety risks at the workplace.

Previous position: saliva OK, but not urine

The use of urine vs saliva drug testing at the workplace has been a controversial subject; the Commission has previously agreed with employees and unions that urine testing could potentially penalise employees for a positive test result triggered by drugs taken some time before, when the employee was actually not impaired at work. Saliva testing, in contrast, detects recent drug use and impairment.

Its position has been that a drug enforcement policy based only on urine testing is unjust and unreasonable, as employers do not have the right to intrude on employees' privacy by imposing sanctions on them related to their drug use outside of working hours that does not necessarily affect their capacity to perform their job safely.

New position: saliva and urine testing can be OK sometimes

Initially, Commissioner Cambridge found that employees' privacy concerns were outweighed by the need to maintain a safe workplace where high-risk work was performed: "a blunt distillation of the contest in this case and its determination can be described as a choice between private lives or saving lives and I have opted for saving lives".

He found that a regime with both forms of testing was more effective, because it was more likely to detect both employees who were impaired at the time of testing, and employees whose capacity to work safely may be affected by long-term drug use.

While the Full Bench accepted that the Commissioner had erred in his interpretation of the expert evidence on drug testing and actually set aside his decision, it still came to the same conclusion that it was not unjust or unreasonable in the circumstances to implement a drug testing procedure using both methods.

The employer has a statutory duty to ensure, so far as reasonably practicable, the safety of its employees and contractors; the Full Bench saw the proposed drug testing regime as part of the employer's attempt to discharge this duty.

It paid particular attention to the fact that the testing regime was random, which added to the regime's deterrent value ‒ it would be harder for employees to take steps to try to avoid detection, as they would not know which method would be used, or when.

The Full Bench also gave significant weight to the employer's case management approach to non-negative test results. Employees who tested positive were not automatically subjected to disciplinary action; other options were considered, such as rehabilitation, counselling or access to the employer's Employee Assistance Program.

Implementing a drug testing regime for saliva and urine

While the Full Bench ultimately agreed with the use of both testing methods, this should not necessarily be taken as an endorsement of this approach in every case.

The Full Bench emphasised that its decision was based on the employer's particular circumstances. These included:

  • a statutory duty to ensure, so far as reasonably practicable, the safety of its employees and contractors;
  • a workplace where high-risk work was performed
  • the random nature of the testing, giving it high deterrence value; and
  • the fairness of the employer's response to a positive result.

Given these caveats, employers intending to implement a drug enforcement policy involving both forms of testing should not assume this decision gives them carte blanche. It does, however, mean they can review their circumstances to see if random dual testing could be a reasonable method of managing the risks of employees' drug use, and seek professional advice. 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.