Why not both? Full Bench solves the urine versus saliva drug testing dilemma
An issue that has been plaguing employers for some time has been given some clarification with the Fair Work Commission again wading into the issue of urine versus oral fluid drug testing in the workplace.
As previous posts ‘Who is ‘taking the piss’?’ and ‘To pee or not to pee’ highlighted, the pros and cons of each testing method have been the subject of much debate between employers and employees/unions, with perceived inconsistencies in Commission decisions only adding to the confusion.
However, the recent full bench decision Construction, Forestry, Mining and Energy Union – Construction and General Division v Port Kembla Coal Terminal Limited  FWCFB 4075 (‘CFMEU v Port Kembla’) seems to draw some parameters around the debate, with the Commission finding that an employer was entitled to adopt a system of both urine and oral fluid random sampling as part of their workplace drug testing regime.
CFMEU v Port Kembla concerned an appeal by the CFMEU from an original decision of Commissioner Cambridge.
Port Kembla wanted to introduce a drug testing regime that included the randomly selected use of both urine and oral fluid sampling as part of its alcohol and other drugs policy. The CFMEU opposed the introduction of the double testing regime, arguing that the introduction of the additional urine testing ‘impermissibly intrudes into the legitimate rights of employees by seeking to regulate private conduct that is not demonstrated to compromise safety at work’.
Commissioner Cambridge found for Port Kembla, confirming that the benefits of adopting both methods of sampling in random combination significantly outweighed any privacy detriments the CFMEU could identify in urine testing.
In answering which test is best the Fair Work Commission considered:
- the aims of the company’s drug testing policy, which was to reduce and manage workplace risks associated with drug use;
- the high-risk nature of the work undertaken at the work site (a coal export terminal);
- the deterrent value added by the combination of test methods. As both testing methods have different ‘windows’ of detection (saliva test results have a much smaller window of detection than urine results, being a few hours compared to a few days) a random combination of testing methods would mean that employees would not know when they would be tested, or how; and
- the company’s treatment of the positive test results adopting a case management based approach including rehabilitation, counselling and support through the Employee Assistance Program.
The full bench found that all factors contributed to a finding that combined urine and saliva testing of employees was not unjust or unreasonable in the circumstances, confirming Commissioner Cambridge’s approach that ‘both tests are better than either’. These cases will continue to depend heavily on the circumstances but this one recognises the deterrent value of urine testing in the context of a case management approach to this difficult issue.
It just goes to show – sometimes the law can be more fluid than you think!
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