3 November, 2018
Arnott's Biscuits Ltd t/as Arnott's v United Voice Ors [2018] FWC 1714 (31 May 2018)
What you need to know
The Fair Work Commission has approved urine instead of oral fluid testing for drug risk management at work.
The National Drug Strategy Household Survey (NDSHS) reports, and the National Wastewater Drug Monitoring Program (NWDMP) reports are publicly available and provide data about drugs and alcohol in Australia.
A further NDSHS report is due to be written in 2019 and issued in 2020. The next NWDMP report will be issued in the next few weeks.
What you need to do
Ensure you have an up to date procedure for drug and alcohol risk management.
Keep abreast of developments such as relevant FWC case law and the reports available and yet to be released under the NDSHS and NWDMP.
Why is this an issue now?
Developments in drug and alcohol use are ongoing and directly affect workplace risk.
In the FWC's most recent decision on the long running issue of the best method for drug testing, the FWC upheld an employer's proposal to introduce urine testing under its drug and alcohol procedure (ADP) against claims by unions that saliva testing should be used.
The dispute related only to agreement covered employees on one site. However, the employer indicated that it would extend training relevant to all sites if its proposal was supported by the FWC.
The question was whether it was unjust or unreasonable to introduce urine testing in pre-employment testing; following a high, extreme or reportable incident; for reasonable cause or before any return to work following a positive test or a self-disclosed drug dependency issue.
Why urine testing was permitted
1. High risk workplace
The relevant site was high risk. Workers worked with machines with blades and ovens were used at high temperatures.
2. Deterrence
The FWC found that urine testing for reasonable cause or following a reportable incident would provide a greater deterrent than oral testing because of the longer detection period of urine testing.
3. Detection times
It was considered very unlikely that a first time user would use cannabis a short time before commencing work or while at work. The FWC gave greater weight to the underlying purpose of the ADP in detecting occasional and regular use of the drug, rather than the limitations of urine analysis of a first time user of cannabis within the first four hours.
4. Hangover effects
Oral fluid testing would not detect the hangover effect of cannabis for about 24 hours. The FWC was satisfied that the long term effects of chronic drug use and the impact it might have on a worker's performance would not be detected with oral fluid testing.
5. Roadside testing
The fact that police in Qld and NSW use roadside oral fluid testing was not persuasive. The evidence disclosed that police roadside testing was for cannabis, methylamphetamine and MDMA only, and not prescription drugs. In any event, blood and urine analysis was undertaken where police suspected use of illicit drugs.
6. Benzodiazapines
The evidence disclosed that oral fluid testing on-site could not satisfactorily detect the use of benzodiazapines.
7. Privacy in providing urine samples
The employer made significant improvements to its ADP privacy provisions after the first two days of hearing.
No observed testing was permitted and, except in limited circumstances, the worker could require the collector to leave the van.
8. Privacy of illicit drug use in non-work time
The employer would take into account any privacy concerns, workers could avail themselves of the employee assistance program and not all breaches would result in disciplinary action.
9. Potential for cheating
The FWC found that the risk of workers cheating urine collection was low when random testing was excluded and it happened in suburban locations (ie not locations such as in fly-in fly-out camps where there was a greater risk of sample trading).
10. Self-testing outside work
The employer agreed to a trial period allowing workers to self-test for drugs and alcohol outside of work premises. As this was done on a trial basis, this factor did not have any bearing on the FWC's decision.
However, self-testing would have supported urine testing had it been on a permanent basis.
11. Other organisations
The FWC considered a number of policies of other employers. It did not accept the submission of United Voice that an employer must have considered oral fluid testing to be appropriate wherever it had been introduced.
This was because there may be many reasons why an employer had adopted oral fluid testing over urine analysis, for example, inability to reach agreement with unions/employees or the cost involved.
Source materials available
Every three years, the Australian Institute of Health and Welfare reports on information from its NDSHS to assist with the development of government drug and alcohol policy. Key findings from the 2016 Report include:
- About 1 in 8 Australians had used at least 1 illegal substance in the last 12 months (cannabis (10.4%), cocaine (2.5%), ecstasy (2.2%) and meth/amphetamines (1.4%))
- 1 in 20 Australians had misused a pharmaceutical drug
- Certain groups disproportionately experience drug-related risks (e.g. people who live in remote and very remote areas, unemployed people and indigenous people); and
- The majority of Australians support policies aimed at reducing the misuse of drugs, and the harms resulting from drug use.
The Australian Criminal Intelligence Commission is producing a series of reports until the end of 2019 on the use of a number of illicit and licit drugs across Australia through wastewater monitoring. Key findings from the March 2018 National Wastewater Drug Monitoring Program Report include:
- South Australia (capital city) and Western Australia (regional) had the highest levels of methylamphetamine use
- Cocaine consumption in Australia is mostly centred in New South Wales (followed by Queensland and the Australian Capital Territory)
- Oxycodone and fentanyl, pharmaceutical substances with abuse potential, had elevated consumption levels at several regional sites; and
- Victoria and the ACT had high levels of heroin consumption.
Making the case: Insights from Geoff Giudice
This decision gives further encouragement to employers wishing to introduce urine testing instead of saliva testing. However, note that:
- the case was not about random drug testing; and
- the position taken by the union should be borne in mind. The employer proposed introducing urine testing in four specific situations. The union opposed urine testing in only two of those situations. In the circumstances, acceptance of urine testing in the other two situations could be seen as a concession that urine testing is overall more effective in detecting drugs and alcohol than saliva testing.
For further information, please contact:
Stephen Nettleton, Partner, Ashurst
stephen.nettleton@ashurst.com
