The Fair Work Commission (FWC) has found that workplace drug testing that relies on combined urine and saliva samples provides a far superior deterrent against illicit drug use in the workplace compared to single-method regimes.

Background

In July 2014, Port Kembla Coal Terminal Limited (the Employer) advised the CFMEU that it intended to implement a new workplace drug testing regime on and from 1 August 2014, even though the CFMEU was opposed to certain aspects of the drug testing regime.  The CFMEU then filed the dispute notification under the Port Kembla Coal Terminal Limited Enterprise Agreement 2012 (the Agreement).

The key issue in dispute was a requirement that employees submit urine samples as part of the drug testing regime.  This issue was referred to the FWC for arbitration under the Dispute Settlement Procedures of the Agreement.

The CFMEU argued that oral testing produced equal or superior results, and posed less of a privacy concern than urine testing, which can be used to identify a history of drug use.  The CFMEU identified this as unnecessary and inappropriate.  The Employer argued that urine testing is superior to oral testing in identifying certain specified drug uses and habits.

Decision

Commissioner Cambridge accepted that the question to be determined was whether the employer had properly exercised its managerial prerogative: whether or not it was unreasonable for the employer to compel its employees to undergo urine testing.

As to the reasonableness of imposing a urine testing requirement, the Employer gave evidence about the negotiation, nature and implementation of other elements of its workplace drug testing regime.

Commissioner Cambridge noted that there had been undoubted controversy surrounding the argument as to which workplace drug sampling method is best.  The evidence in this case, in line with previous matters, established that each method has certain benefits and shortcomings.

The Commissioner concluded that the safety benefits obtained through the adoption of both methods of sampling in random combination significantly outweigh any privacy detriments.   The combination of both methods would in general terms provide:

  • long-term drug monitoring benefits
  • the identification of more acute drug induced impairment, and
  • a superior deterrent against drug use.

Against these significant benefits, the alleged privacy intrusions are matters of little realistic consequence.

Lessons for employers

This case is another step in the ongoing tension between workplace alcohol and drug testing procedures and employee privacy.  Importantly, it weighs in favour of allowing more intrusive testing where countervailing safety benefits arise.  Employers may wish to consider their alcohol and drug testing procedures against the developing standards which have been accepted by the FWC as reasonable, noting that the particular circumstances of each case will continue to determine whether or not it is reasonable to require more stringent testing.