Endeavour Energy has appealed the ruling of Fair Work Australia, which last month determined that the employer’s plan to introduce urine rather than oral drug testing for employees was unjust. The ruling was made due to reasons relating to the privacy of workers and accuracy of the testing. The employer has now appealed the ruling, which unions warn could have nation-wide implications.
Fair Work Australia was called in to settle the dispute regarding Endeavour Energy’s proposed new policy and procedure which included testing employees randomly to determine whether they were fit for duty or not. The unions did not oppose the random testing however they did oppose urine testing. Unions argued that oral testing would be more accurate and acceptable.
Fair Work Australia then delivered their decision, and explained that although both methods could be manipulated by workers, they did not agree to urine testing.
WorkplaceOHS.com.au reported the decision:
Both methods are susceptible to cheating. For example, cleaning one’s mouth thoroughly after smoking cannabis would minimise the risk of being caught by an oral fluids test. Urine can also be adulterated. There is some evidence that saliva/oral fluid screening is less susceptible to specimen adulteration or substitution compared to urinalysis. In practice however, the likelihood of someone being in a position to cheat effectively when a test is conducted at random and with no prior warning is in my opinion relatively low.
Australian standards exist governing both methods; and there are laboratories accredited for the analysis of both oral fluid and urine samples. Systems are in place to verify on-site testing devices for both oral fluids and urine.
Neither method tests directly for impairment. However, a method which tests for recent consumption (only) is more likely to identify someone who is impaired. While some witnesses regard this as a weakness, it is precisely because it only detects for recent use that oral fluid testing is a better indicator of likely impairment as a result of smoking cannabis (the most widely used drug apart from alcohol) than a urine test. Indeed, urine testing may be unable to identify that someone has smoked cannabis in the previous four hours — precisely the time frame which is most relevant for identifying likely impairment.
Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In the circumstances where oral fluid testing — which does not have this disadvantage — is readily available, I find that the introduction of urine testing by the applicant would be unjust and unreasonable. Accordingly I find that the system of drug testing that should be used by the applicant for on-site drug testing should be that involving oral fluids. This should be done on the basis of AS4760 — 2006: the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.’
Endeavour Energy is now appealing the decision, which unions argue is worrying. While Workplace Safety Guidelines clearly prohibit workers entering a jobsite under the influence of drugs or alcohol, employee’s rights still have to be considered and respected. Companies are clearly within their right to ensure that their jobsites are safe and that employees are sober and fit for duty, to ensure safety on site. Unions however are concerned that the rights of employee’s privacy must not be infringed upon. The accuracy of urine testing is also questionable.
According to WorkplaceOHS.com.au unions raised the following issues on the matter:
According to the United Services Union (USU) — which is amongst the unions that represent Endeavour’s workforce — the company’s decision to appeal the ruling ‘flies in the face of fairness and proper OHS’.
‘Workers should not be penalised for weekend activities’
‘Despite Fair Work Australia’s acceptance of oral swab tests as the most reasonable and accurate means of testing for drug use, Endeavour is persisting with a drug testing regime that is unjust and unreasonable,’ said USU energy manager Scott McNamara.
‘Workers should not be penalised for what they did on the weekend — it’s no business of the boss.’
McNamara said FWA’s decision not only recognised the logic of the USU’s argument for oral swabs, but also promoted ‘better’ workplace safety standards.
‘We can only presume that Endeavour management has a voyeuristic desire to snoop on the private lives of its employees,’ he said.
‘Management’s decision to appeal has nothing do with workplace safety or fairness.’
‘The rest of the energy industry has already seen the logic of our argument – it’s time for Endeavour to get on board.’
‘Neither method is infallible, but oral testing is fairer’
Meanwhile, Rail, Tram and Bus Union (RTBU) national secretary Bob Nanva said the result of the appeal could have significant ramifications for the national process to harmonise rail safety laws, which is currently underway.
‘The RTBU is of the view that Fair Work Australia’s ruling on urine testing versus oral testing this year sent a very clear signal on what the appropriate approach to workplace drug testing should be,’ he said.
‘We thought the FWA decision was highly relevant to those overseeing the rail safety law harmonisation process.’
Nanva said that while the more ‘invasive’ urine testing method may give an employer a good idea of what a worker may have been up to recreationally on the weekend, it is not a good means of getting an indication of actual impairment.
‘Oral testing, on the other hand, is far more likely to pick up the point of impairment, and is therefore a far more preferable method to employ if you are sincerely focused on improving safety standards,’ he said.
‘After appraising the evidence, senior deputy president, Jonathan Hamberger found, correctly in my view, that while neither method was infallible to cheating, oral fluid testing was fairer.’
‘However, the RTBU will now be monitoring Endeavour Energy’s appeal carefully, because if, successful, it has the potential to completely change that signal.’
‘Additionally, a successful appeal by Endeavour could alter the RTBU’s capacity to use enterprise agreements to override regulations relating to urine testing. The original FWA decision, based on all the relevant evidence, was reasonable and just. We will be watching the appeal against it very closely
For more on the decision visit: http://www.fwa.gov.au/decisionssigned/html/2012fwa1809.htm