An appeal by Endeavour Energy against a decision by Senior Deputy President Hamberger (SDP) which found the most appropriate methodology in a proposed new policy on drug testing was on-site oral fluid screening devices, has done little to clarify for employers the preferred drug testing method. It has however provided some comments employers may find useful.
The employer sought to introduce a new policy dealing with drug and alcohol testing in the workplace, which included the introduction of urine testing. The unions objected to certain features of the proposed policy and the parties agreed to refer their differences to FWA.
The SDP considered expert evidence. He found the introduction of urine testing would be unjust and unreasonable and the appropriate method of drug testing should be through oral fluid with the testing to be carried out in accordance with Australian Standard AS4760-2006. On appeal the employer sought to challenge the decision that the appropriate method of drug testing was oral fluid.
The Full Bench found that no appealable error had been established. It found ultimately the policies to be adopted by employers on drug and alcohol testing in the workplace will depend on what is deemed appropriate according to their needs and circumstances. Having regard to the evidence and submissions presented, it was open and appropriate for the SDP to conclude that oral fluid testing but not urine testing for drugs should be adopted as part of the new drug and alcohol policy of Endeavour Energy.
Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited  FWA 8288
The relevance of the HWE Mining case was raised in the appeal, a conflicting decision in which urine testing was the preferred methodology.
While noting it may have been prudent for the SDP to refer to the decision in HWE Mining, the Full Bench found the SDP was ultimately required to determine the matter which had been referred to him on the basis of the evidence and material before him and noted the circumstances and evidence of the two matters were different.
One of the relevant distinguishing facts of that decision was that HWE Mining involved a determination of whether an established approach to drug testing should be changed, by introducing a programme for saliva testing and a continued role for urine testing. Whereas, this case concerned the appropriate testing methodology to be used in a proposed new policy. Further, the evidence in the two matters of the efficacy of on-site oral fluid screening devices was different. HWE Mining was heard in mid-2010 and involved the studies and experience of the Victorian Police in relation to the devices under consideration in the studies, whereas in the present case the evidence was that there has been significant improvement in the reliability of current on-site oral fluid testing devices.
Full Bench comments
The Full Bench commented that the question of which testing method must be considered having regard to the purpose of the drug testing policy. In this case the purpose was to prevent individuals adversely hindered by alcohol and other drugs from undertaking work. It was therefore found to be open to the SDP to place significance on the evidence that oral testing was more likely to detect recent drug use and therefore impairment and that a positive test result from a urine test might detect drug use at a time which in no way affected their current capacity to do their jobs safely.
The Full Bench also indicated that the health and safety obligations under the relevant occupational health and safety legislation did not create an obligation on an employer to apply a particular form of drug testing.
Implications for employers
It appears from this case that, although each case will turn on its own facts and circumstances, there may be a preference by FWA towards oral fluid testing in cases where employers in particular are introducing a drug testing policy. If you are concerned about your current policy on drug and alcohol use, or you are considering developing a new policy, it is recommended you seek legal advice as the applicable legal principles and appropriate methodology to be applied in your specific set of circumstances.