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Full Bench upholds Port Kembla drug test regime

A FULL BENCH of the Fair Work Commission (FWC) has upheld an earlier decision of Commissioner Cambridge that the BHP Billiton-managed Port Kembla Coal Terminal could include both urine and saliva testing in its on-site drug and alcohol management regimes.

In April this year, Commissioner Cambridge was hearing a dispute between the CFMEU and Port Kembla over its proposed drug and alcohol screening policy that would see employees at the Wollongong site subject to both urine and saliva testing at random.

The Commissioner ruled in favour of the employer, stating that “any discomfort or embarrassment about providing a urine sample would be of negligible consequence if such discomfort or embarrassment avoided death or debilitating injury suffered at work.”

Commissioner Cambridge’s decision to back Port Kembla’s new drug and alcohol management policy was seen as a favourable shift in the FWC’s position on the matter, with other decisions in recent years sending mixed signals to employers about their rights to enforce whichever testing policy it deemed most effective.

Furthering Cambridge C’s ruling was a separate FWC decision that found impairment from drug use was of little relevance where a presence was detected – rejecting a common union argument that evidence of physical impairment is more important than the presence of banned substances.

In hearing the CFMEU’s appeal of Commissioner Cambridge’s ruling, the Full Bench comprising Senior Deputy President Hamberger, Deputy President Gostencnik and Commissioner Roberts, reviewed a wide range of drug and alcohol decisions going right back to the contentious Endeavour Energy ruling of 2012.

“Previous Full Bench decisions have upheld decisions by single members to the effect that the use of urine testing as opposed to oral fluid testing is unjust and unreasonable,” the Full Bench noted in its decision.

“However, the issue in the current case is whether a system which uses both methods (selected at random) has advantages that outweigh the privacy concerns that are raised by the use of urine testing on its own. “

Ultimately, the Full Bench ruled that both methods had their benefits and shortcomings, and if Port Kembla deemed the most effective way to ensure safety was to implement a combination of the two, that should be respected.

“PKCT has a statutory duty to ensure, so far as it is reasonably practicable, the safety of its employees and contractors who might be put at risk by work that is being carried out. An essential element of this duty involves the identification of potential hazards and elimination or minimisation of risks,” the Full Bench said.

“Having regard to the high-risk nature of the work undertaken at the Port Kembla coal terminal by employees, the privacy concerns about urine testing must therefore give way to allow the implementation of a testing method which will enable PKCT to identify and manage workplace safety risks.

“While neither method is fool-proof, the evidence indicates that oral fluid testing will generally identify employees who have recently consumed a drug and are therefore likely to be impaired.

“Urine testing will identify whether an employee has taken a drug in the preceding days or even weeks – including at times when there is no serious risk that the employee will still be impaired when they attend for work.

“While there are privacy concerns with urine testing, we consider that in the particular circumstances of PKCT, it would not be unjust or unreasonable for PKCT to implement its proposed AOD Standard and associated testing method.”

The decision transcript can be read here.

For advice on implementing and upholding drug and alcohol management policies and procedures in your workplace, contact your local AREEA office.

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