AIRC rules against urine testing, saliva tests better indicate impairment
An AIRC full bench ruling that found saliva tests preferable to urine tests could open floodgates for challenges against workplace drug testing arrangements.
Specialist OHS lawyers say the finding could give further momentum to union resistance to drug and alcohol testing in the workplace.
Shell Refining Australia sought a private arbitration to review a ruling by the AIRC's Deputy President Jonathan Hamberger last year that found its proposed urine testing regime would be "unjust and unreasonable" and would not necessarily indicate that a worker was unfit for work.
It contended that Senior Deputy President Hamberger did not fully appreciate its drug and alcohol policy, which was based on the principle that any worker who returned a positive reading was a potential risk to health and safety.
Further, a urine test was a better indicator of risk than saliva because it could detect drugs ingested within recent days and identify chronic users, whereas saliva testing only detected drugs ingested within a few hours, Shell submitted.
The full bench - President Geoffrey Guidice, Senior Deputy President Anne Harrison and Commissioner Annette Larkin - said that there was no doubt that Senior Deputy President Hamberger acknowledged and gave weight to the importance of eliminating risk, but he also balanced that consideration against the fact that it intruded on workers' privacy.
"It is equally apparent that he regarded drug use during non-working hours as something which was not the employer's business unless there was a risk that the drug user was impaired at work," the bench pointed out, finding Senior Deputy President Hamberger's preference for saliva testing rather than urine testing was based on that finding.
The bench said that urine testing might indicate that a worker who tested positive might at some time be an actual risk to health and safety, but that did not justify the intrusion into a worker's privacy that a urine test involved and that a saliva test did not.
The CFMEU said the AIRC's decision was significant in protecting worker privacy and improving drug and alcohol testing standards at workplaces.
Union national legal officer Judy Gray told OHS Alert's associate publication, Workplace Express that she expected to see other unions challenge urine drug testing arrangements as a result of this decision.
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The CFMEU has lodged an appeal in the Australian Industrial Relations Commission in a bid to stop Rio Tinto engaging in an alleged industrial action against its workers over their refusal to continue undergoing urine tests.
In 2006 the CFMEU and Rio Tinto's subsidiary, Coal & Allied at Mount Thorley Warkworth, came to an agreement over the implementation of saliva drug testing to replace urine testing in the company's Coal and
Allied Alcohol and Other Drugs Standard.
According to CFMEU's mining division's northern district industrial officer, Keenan Endacott, Rio Tinto had committed to switching to saliva drug testing if an Australian Standard for saliva testing was developed. The
company also said it would revise its Standard in accordance with the Australian Standard.
Endcott says that Australian Standard 4760, Procedures for specimen collection and the detection and quantitation of drugs in oral fluid (see a preview), has been available since it was published in November 2006,
but the company has refused to shift away from urine testing.
He says the union gave the company a deadline of 14 May, after which its members would only agree to be tested under the terms of AS4760 and would refuse to provide urine samples.
The union says Coal & Allied sent a memo on about 14 May of its alleged "lockout", directing supervisors to stand down workers who refused tests.
The company told its members during tool box meetings from 9 May onwards that they would be stood down if they refused urine tests, it says.
Last Friday, Commissioner Frank Raffaelli rejected the CFMEU mining and energy division's bid for a s496 order against the alleged lockout by Rio Tinto.
(Under s496, the Commissioner must order that industrial action stop, not occur and not be organised, where it appears that industrial action is taken by employees or an employer if it is not protected and is happening; or threatened, impending or probable; or being organised. Prior to WorkChoices, a Commissioner only had the discretion to make a s496 order.)
The CFMEU lodged an appeal yesterday and is seeking an expedited hearing. The appeal will test for the first time before a full bench under WorkChoices the ability of unions to obtain a s496 order against an employer lockout.
The union says the case will test whether an employer is locking out its workforce when it stands them down, contrary to their contract of employment.
It maintains that there is no doubt a lockout is "threatened, impending or probable" and that as a result the Commission must make a s496 order - it has no discretion under the rigid regime set up by WorkChoices.
Shell should use oral fluid testing rather than urine sampling at its refinery and terminal, the AIRC determined in setting precedence for random drug testing.
In an important decision on random drug testing, the AIRC has determined that Shell should use oral fluid testing rather than urine sampling - which invades employees' privacy more - at its refinery and terminal in NSW.
In a private arbitration this week, Senior Deputy President Jonathan Hamberger determined whether it was unjust or unreasonable for Shell to implement a urine-based random testing regime, which interferes with the private lives of employees, when an alternative that is available is more focussed, effective and less likely to detect drug use that would have no consequential effect on work performance.
"My conclusion is that the implementation of a urine based random drug testing regime in these circumstances would be unjust and unreasonable."
However, oral fluid testing should be used for random drug testing only when two issues were satisfactorily resolved, he said. He noted that no Australian laboratories were yet accredited for oral fluid testing under the relevant standard [not-for-profit company RASL gave evidence that it would shortly seek accreditation], and Shell could not be expected to implement its system until they were.
The second issue was that there were drugs (such as benzodiazepines) for which the relevant standard did not contain target concentration levels. Shell, he said, again could not be expected to implement an oral fluids based regime until it had the agreement of the union and the laboratory it would use for other drugs it wished to test and what was the appropriate target concentration level.
"Once these two issues are satisfactorily resolved, any random drug testing should be conducted using oral fluids. Until then it would not be unreasonable for the company to implement a urine based testing regime on an interim basis," he said.
Senior Deputy President Hamberger noted that the WAIRC in Court Session in the BHP Iron Ore Case had found that random testing using urine samples was justified on safety grounds, but said that case was 10 years old and since then oral fluid testing had become available and an Australian standard developed. The matter came before the AIRC under the parties' dispute resolution MOU after the CFMEU (mining and
energy division) raised concerns about the revised drug and alcohol policy the company planned to introduce at the NSW refinery and terminal. Although it was a private arbitration, both sides waived their right to privacy because of the wider significance of the dispute.
The union acknowledged the role random drug and alcohol testing played in workplace safety, and said it did not oppose it if done in a fair manner. However, it argued testing should be for recent use, which was associated more with impairment, whereas urine sampling tested use over a longer period and was an unnecessary and unfair incursion into employees' private lives.
Senior Deputy President Hamberger noted that under Shell's policy a positive drug test did not in isolation lead to dismissal, but repeated breaches did.
"As a consequence, positive tests caused by taking drugs outside working hours, at a time when they are very unlikely to indicate significant impairment at work, could form the basis of the termination of an employee's employment."
While Shell argued that laboratory-based oral fluid testing was not accurate, certifiable, reliable, repeatable or consistent, Senior Deputy President Hamburger said this position was based on its witnesses' examination of on-site testing of oral fluids, but was not correct for laboratory testing.
He said Shell's argument that oral fluids tested a more limited suite of drugs and metabolites than urine was not consistent with expert evidence.
On whether the company could target some employees for random testing and not others, Senior Deputy President Hamberger said that adopting a risk assessment process to identify which employees should be subject to random testing was "entirely appropriate", and the methodology contained in Shell's policy did not seem unreasonable.
In another issue before the Commission, Shell's revised policy also stated that its contractors were expected to adopt drug and alcohol practices consistent with its own, and that their employees who performed high- and medium-risk activities could be subject to the same conditions for testing as Shell workers.
Deputy President Hamberger said it did not seem "unreasonable" that the company implement this progressively, as it was doing. It should advise the union within six months that all contractors had adopted
consistent drug and alcohol policies, and identify any that failed to comply.