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Date PostedMay 2, 2012

White Card Update : Company Contests FWAs Drug Testing Decision

Shortly after a decision by Fair Work Australia, that limited the drug testing rights of employers, Endeavour Energy appealed the ruling, as it believes urine testing is more accurate. The decision has employers and unions in a battle against each other on the issue, because unions believe that urine testing is unethical and unnecessary.

The FWA found that urine testing was less efficient in measuring whether an employee was intoxicated or under the influence of drugs. It also believes that people would be found over the limit even for drinking and drug taking which may have occurred several days earlier or on the weekend. Unions believe this is unethical, because what workers do over the weekend has nothing to do with their employers. Endeavour Energy has made the appeal on the ruling regarding the drug testing only and has accepted all other decisions of the FWA with regards to testing.

SafetyCulture.com.au has this to say :

A major energy company is appealing against Fair Work Australia’s (FWA) decision to limit the company’s drug testing rights.

The company’s stance has received support from employers, but unions have expressed concern.

The company lodged its appeal last week soon after FWA determined the company could test saliva but not urine in its drug and alcohol-testing program.

In his ruling FWA Senior Deputy President Jonathan Hamberger ruled: “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.”

The company, however, believes urine testing is the better option and has appealed against the part of the determination that relates to the drug testing method.

Also, in light of an earlier FWA decision concerning HWE Mining, the company wants to seek clarity “about the status of urine testing”. Contrary to the energy company’s decision, the HWE decision found urine testing was neither unjust nor unreasonable, a company spokesperson said in a media statement.

Source: http://www.safetyculture.com.au/news/

However employers believe that in order to adhere to the occupational health and safety laws, it is important that urine testing be allowed while the unions still believe that urine testing is unreliable to measure fitness for work and unethical as it will hold employees liable for their weekend activities.

The report by SafetyCulture.com.au goes on to say:

Employer representative AMMA supports the appeal. “Based on the findings in the HWE Mining case, there is a strong argument to be made that mining industry employers are obligated to adopt urine testing as the most accurate method of onsite screening in order to meet their stringent obligations under OHS laws,” CEO Steve Knott said in a media statement.

Unions, however, have rejected the company’s appeal, saying urine testing doesn’t measure fitness for work and what employees do on weekends and recreationally isn’t the employers business.


Both the energy company and the union could have appealed the decision by The FWA. Endeavour Energy has since lodged an appeal against the ruling and has this to say on its website EndeavourEnergy.com.au:

FWA recently determined Endeavour Energy could introduce its drug and alcohol testing program by using oral swabs, rather than testing urine samples.

“We’re appealing one part of that decision while accepting the rest,” an Endeavour Energy spokesperson said.

“The appeal only relates to the method of testing for drugs.

“We believe we have an overriding legal and social responsibility to protect the safety of our staff at work from foreseeable risks associated with chronic drug use. It is urine testing, not oral swab testing, that best mitigates those foreseeable risks.

Endeavour Energy has cited on its website its dedication to the highest possible safety standards and believes that the high risks involved when working with electricity validates its urine drug testing. According to Endeavour Energy the safety of both its employees and the public are dependent upon its workers being fit for duty, something it believes can only be confirmed if it is allowed to conduct random urine drug testing.

EndeavourEnergy.com.au goes on to state:

“When working with electricity, there is no margin for error as even the smallest mistake can be fatal or cause severe and permanent injury.

“That is why safety is Endeavour Energy’s top priority and we are taking steps to ensure the health and wellbeing of our people and the public.

” We are also seeking clarity about the status of urine testing, given two apparent contradictory decisions by FWA in the last six months – one concerning HWE mining and the most recent decision relating to Endeavour Energy.

“The HWE decision found that urine testing was not unjust nor unreasonable while the most recent decision found that urine testing at Endeavour Energy was unjust and unreasonable.

Source : http://www.endeavourenergy.com.au/wps/wcm/connect/ee/nsw/nsw+homepage/aboutusnav/media+centre/media+releases/2012/endeavour+energy+to+appeal+fair+work+australias+decision+on+drug+testing

For more information on this issue or for the latest updates and rulings, visit www.fwa.gov.au or http://www.endeavourenergy.com.au


Peter Cutforth is a Director at Urban E-Learning, a global elearning and web strategy firm based in George St Brisbane. Peter's interests extend to training, safety and compliance, online marketing, and Mobile Apps.

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