Storm in a sample cup: FWA’s decision on urine testing

Is Fair Work Australia’s decision on urine testing a storm in a sample cup or is it just taking the proverbial? The decision has drawn comment from all areas of industry, with unions and industry bodies all contributing their two cents’ worth.

After initially rejecting Endeavour Energy’s application to implement a mandatory, urine-based, on-site drug testing regime for its employees, the Fair Work Australia Full Bench has once again decided against the company, rejecting its appeal and arguing that urine testing is invasive and unnecessary.

As expected, union groups have applauded the Bench’s decision, while the CEO of industry group AMMA (Australian Mines and Metals Association) claims the decision restricts employers’ rights to manage their own business.

Let’s take a look at some quotable quotes that have come out of the appeal and final decision.

The Bench

Senior Deputy President Matthew O’Callaghan, one of the three members of the Bench, said that although both urine and saliva tests are “susceptible to cheating” and employers have “a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol”, they do not have the right to restrict an employee’s drug and alcohol use outside of the workplace.

Additionally, O’Callaghan said, saliva testing is preferable to urine testing in identifying cannabis use as urine testing may show a positive result several days after a person has used the drug. “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.”

Consideration of cannabis was important, O’Callaghan said, because after alcohol, it is the most widely used recreational drug. While he conceded that saliva testing can fail to identify a person who may still have some residual impairment resulting from cannabis use, he said, “oral fluid testing rather than urine testing was more likely to detect recent drug use and therefore impairment, and that a positive test result from a urine test might detect drug use at a time which in no way affected [an employee’s] capacity to do their jobs safely.”

The industry group

When Endeavour Energy appealed the original decision made in March by Senior Deputy President Jonathan Hamberger that saliva testing is preferred, AMMA was granted leave to intervene in proceedings to support Endeavour’s appeal. Steve Knott, AMMA CEO, said the association “felt it was important to press the importance of managerial prerogative” to the Full Bench.

AMMA argued that “there was no proper basis in the present matter to interfere with managerial autonomy, and that the decision failed to give proper weight to the employer’s workplace health and safety obligations”.

While Hamberger’s decision contradicted a 2011 decision in favour of HWE Mining to vary its drug testing policy to include urine testing, O’Callaghan said the two cases differed significantly enough for Hamberger’s decision to be a valid one.

Knott says the decision is of great concern for the mining industry, which he claims has a strong case for urine testing to manage occupational health and safety obligations. “This decision again demonstrates the capacity of FWA to prevail upon employers’ policies in a negative way,” Knott said.

AMMA is recommending that its members should continue to rely on the principles of the HWE case when implementing drug and alcohol policies, even though “employers can expect to see a union push towards restricting on-site drug testing to saliva testing, emboldened by this decision”.

It also makes several other recommendations to employers:

• Wherever possible, ensure dispute resolution procedures are limited to resolving only those matters arising under the agreement or in relation to the National Employment Standards;
• Take all steps to use the options available in implementing workplace policies outside of an enterprise agreement, without the interference of the tribunal; and
• If there is no other option, be careful to characterise a dispute to enable the tribunal to determine the reasonableness of the employer’s preference rather than to assess the merits of the union’s preference.

The unions

Following the Bench’s announcement of its decision, three union groups - the United Services Union (USU), the Electrical Trades Union (ETU) and the Association of Professional Engineers, Scientists and Managers (APESMA) - have urged Endeavour Energy to abandon further appeals and abide by the FWA’s decision.

The groups claimed that “urine tests are invasive and inappropriate due to their capacity to detect drugs taken several days ago” and called on the NSW Energy Minister Chris Hartcher to intervene and refuse any further appeals.

“It is estimated that Endeavour Energy have spent well in excess of $100,000 on this matter, with an appeal only adding to this unnecessary expense,” said ETU NSW Secretary Steve Butler.

“This cost will no doubt be passed on to Endeavour Energy customers through their power bills. The time has come for Minister Chris Hartcher to intervene, accept the independent umpire’s decision and say enough is enough.”

The fact that the decision has twice been made in favour of saliva testing should put the matter to bed, USU Energy Manager Scott McNamara said, and will bring Endeavour in line with Ausgrid and Essential Energy practices.

“We expect all parties to abide by the court’s decision and get on with the job of implementing the saliva-based testing model across the NSW electricity industry,” added APESMA Senior Industrial Officer Gordon Brock.

The company

Endeavour Energy says it is still considering the FWA decision. The company said it appealed the March decision to seek clarity about urine testing, in light of Hamberger’s decision contradicting the 2011 HWE Mining decision on urine testing.

Endeavour maintains that urine testing is the most accurate way to detect chronic drug use that may have safety implications.

“We’re committed to protecting every employee and the public from the foreseeable risks presented by employees who may not be fit for work due to drug or alcohol use,” a spokesperson said.

“Endeavour Energy’s top priority is for all its employees to return home safely at the end of each work day and not be exposed to harm from chronic drug users in the workplace.”

Implications for industry

With the HWE Mining and Endeavour Energy decisions seeming, at first glance, to virtually contradict one another, some employers may be feeling justifiably confused when it comes to workplace urine testing.

With two very different precedents set, it’s unclear what the future holds for employers hoping to implement employee drug testing.