In a decision released by the Full Bench of the Fair Work Commission this week (Construction, Forestry, Mining and Energy Union – Construction and General Division v Port Kembla Coal Terminal Limited  FWCFB 4075), the last word was had on the argument between the CFMEU and Port Kembla Coal Terminal Ltd with regard to the employer’s intention to introduce mixed and random drug testing in the workplace. The decision will hearten employers in high risk industries.
In July 2014, after consultation with the Union, the employer announced that it would be introducing the Alcohol and Other Drug Standard, requiring employees to undertake random urine and saliva tests to ensure they were free of drugs and alcohol at work. The Union filed a dispute in the Fair Work Commission claiming the use of urine tests illegitimately interfered with the privacy of workers and identified historical drug use that didn’t affect an employee’s work capacity on the day.
The employer argued that urine testing was widely accepted at other coal port terminals and that using both testing methods randomly would overcome the limitations of using only one method and act as a greater deterrent to illicit drug use and attempts to hide it.
In its initial decision, the Fair Work Commission rejected the Union’s argument, stating it was completely irrelevant if one, or four, or more days have elapsed between consumption of the drug and detection of it (or its metabolite) at the workplace. The Commission also held that any discomfort or embarrassment about providing a urine sample would be of negligible consequence if such discomfort or embarrassment avoided death or debilitating injury suffered at work.
The Union appealed to the Full Bench arguing the use of random urine and saliva drug testing unreasonably intrudes into the legitimate rights of employees by seeking to regulate private conduct that is not demonstrated to compromise safety at work.
Ultimately the Full Bench found it was not unjust or unreasonable for the employer to implement a dual random testing scheme using both saliva and urine, arguing that safety at the workplace was paramount to the Union’s concerns of the privacy of employees.
For employers in high risk industries, these decisions confirm the safety of all engaged on worksites and the employer’s obligation to ensure identified safety standards will prevail over claims of infringement of personal liberties of employees.