[2013] FWCFB 3316

[2013] FWCFB 3316

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Raymond Briggs
v
AWH Pty Ltd
(C2013/4142)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER BISSETT

SYDNEY, 5 JUNE 2013

Appeal against decision [PR535351] of Commissioner Williams at Perth on 9 April 2013 in matter number U2012/10089.

[1] The issue of whether the most appropriate method of workplace drug testing is by the collection and analysis of a urine sample or a saliva sample has proved to be controversial. The controversy exists at two levels. Firstly, there has been a scientific debate as to which method best detects drug use of a nature that may affect workplace health and safety. At the core of this debate are the propositions that urine testing is the more accurate means of determining whether an employee has at some time consumed any one of a range of drugs of abuse, but that saliva testing is better at identifying likely present impairment from drug use (particularly cannabis use) because it only detects very recent use. The Full Bench in Endeavour Energy v CEPU 1 described the competing scientific merits of urine and saliva testing in the following concise way:

“... oral fluid testing is more focussed on acute impairment, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns.”

[2] Secondly, there has been controversy over which of two competing workplace interests (which might alternatively be characterised as workplace “rights” in the social and ethical if not the legal sense) should be given priority in the selection of the appropriate testing method. On the one hand, there is the interest of employees in not having their private behaviour subject to scrutiny by their employers. As a general proposition it is doubtless the case that employees are entitled to a private space in their lives into which the workplace may not intrude, although the boundaries of that space may sometimes be difficult to define. Urine testing challenges employee privacy, because it detects historic drug use, including drug use in purely private time, not just recent drug use during or immediately before working time as in the case of saliva testing. 2 On the other hand, there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety. Both employers and employees are throughout Australia subject to statutory duties concerning workplace safety, breach of which may result in criminal liability, and employees are exposed to the possibility of injury or death if workplace risks to safety are not identified and either removed or controlled. In this context it has been argued that the wider net cast by urine testing is more effective in protecting this interest in that it may catch any user of drugs of abuse who may represent a current or future risk to safety, and also acts as a more effective deterrent to drug use.

[3] Industrial tribunals have accepted at least since the 1998 decision of the Western Australian Industrial Relations Commission in BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards Sawmills and Woodworkers Union of Australia, Western Australian Branch 3 that the implementation of a program of random and targeted drug testing is a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy. As the Full Bench put it in that case:4

“...current standards and expectations of the community concerning health and safety in the workplace as evidenced by legislative prescriptions and judgements of courts and industrial tribunals are such that there will, of necessity, be some constraint on the civil liberties at times and, in particular, an intrusion into the privacy of employees.”

[4] However, no consensus has developed in decisions of industrial tribunals as to what is the most appropriate method of testing. The testing program approved in the BHP Iron Ore Case involved urine testing, but scientific developments since that time, including the development of an Australian oral fluids testing standard (AS 4760), have made saliva testing a credible alternative. Thus in Shell Refining (Australia) Pty Ltd v CFMEU 5, Senior Deputy President Hamberger determined as follows in a dispute resolution process conducted under Division 3 of Part 13 of the Workplace Relations Act 1996:

“I note that the Western Australian Industrial Relations Commission in Court Session in the BHP Iron Ore Case specifically found that a random testing programme using urine samples was justified on safety grounds – and indeed was both fair and reasonable. However that case was decided ten years ago. Since then oral fluid testing has become available and an Australian standard for oral fluid testing has been developed. The question now is whether it would be unjust or unreasonable for the company to implement a urine based random testing regime with its wide “window of detection”, with all that implies for interfering with the private lives of employees, when a much more focussed method is available, where a positive test is far more likely to indicate actual impairment, and is far less likely to detect the use of drugs at a time that would have no consequential effect on the employee’s performance at work.

My conclusion is that the implementation of a urine based random drug testing regime in these circumstances would be unjust and unreasonable.”

[5] A somewhat different conclusion was reached by the NSW Industrial Relations Commission (Connor C) in Holcim (Australia) Pty Limited v Transport Workers' Union of New South Wales 6. Connor C determined that while saliva testing might in time become the more appropriate, convenient and accurate testing method, it had not yet developed to the point that it should displace the more established method of urine testing. In CFMEU v HWE Mining Pty Limited7 Lawler VP agreed with the decision in Shell insofar as “laboratory testing of saliva is essentially as reliable as laboratory testing of urine in detecting relevant drugs”, but found that in the case of on-site testing, which the employer in that case required to be undertaken, “the currently available on-site screening devices for saliva” were “materially less reliable” than for urine testing. In Endeavour Energy v CEPU8, Hamberger SDP concluded that introduction of a urine testing policy in that case would be unjust and unreasonable because an employee could breach the policy through private conduct which had no effect on work capacity, and because of the availability of saliva testing as an alternative. This decision was upheld on appeal as being “open and appropriate” in the circumstances of the case.9 The Full Bench in that appeal said in addition:

“The approaches and policies to be adopted by employers on drug and alcohol testing in the workplace will depend upon what is deemed appropriate according to their needs and the circumstances.”

[6] The controversy of urine testing versus saliva testing clearly has implications for the public interest. However, the determination of this appeal does not require us to attempt to resolve this controversy. Mr Briggs, the appellant, was dismissed by his employer AWH Pty Ltd (AWH) for repeatedly refusing to comply with a direction to undergo a drug test involving the taking and analysis on-site of a urine sample, ultimately in the face of a warning that he would be dismissed if he did not comply. He contended that there was no valid reason for his dismissal, and that his dismissal was unfair, because the direction to take the urine test, whilst lawful, was not reasonable and therefore did not require compliance. However Mr Briggs did not contend that a direction by an employer to an employee to take a urine test could never be reasonable having regard to the issues we have earlier adverted to. In fact he conceded that an employer could legitimately use urine testing in accordance with the Australian Standard for drug testing in urine (AS 4308) if its policy objective was to detect drug use per se in order for it to be able to manage the risk of such use rather than to test for functional impairment caused by drug use. His case, both at first instance and on appeal, was confined: Mr Briggs argued that because AWH’s policy on “Alcohol and Drug Misuse” (the Policy) only provided for testing of employees for impairment whilst at work caused by drug use, a direction to undertake a urine test could not be reasonable because a urine test was not a test for impairment. In this connection, Mr Briggs particularly directed our attention to the statement in AS 4308 that “This standard has no relevance to impairment”.

[7] In the decision of Commissioner Williams the subject of this appeal 10, the Commissioner found that Mr Briggs’ repeated refusal to comply with the urine testing direction constituted a valid reason for his dismissal, the direction being a lawful and reasonable one,11 and that there was no other circumstance which rendered the dismissal unfair12. Mr Briggs’ appeal, although involving a number of appeal grounds, essentially challenged the Commissioner’s conclusion that the relevant direction was reasonable on the confined basis we have identified.

[8] The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan 13 in the following terms:

"But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."

[9] Here, Mr Briggs’ contract of employment (as the Commissioner found 14) expressly required him to comply with AWH’s various policies as amended from time to time. Mr Briggs did not challenge this conclusion in his appeal. Mr Briggs was therefore contractually bound to comply with the Policy. Contrary to Mr Briggs’ submission, the Policy did not confine itself to testing for impairment from drug use. The Policy explicitly conferred on AWH the right to conduct or require an employee to undergo a test carried out in conformity to AS 4308 - that is, a urine test. The cut-off levels prescribed in AS 4308 to indicate a positive detection were established as the cut-off levels for the purpose of the application of the Policy. Significantly, the Policy expressly recognised the difference in terms of disciplinary consequences between a mere positive result from a urine test, indicative of drug use, and evidence of actual impairment by providing:

“An employee who returns a positive test result shall be dealt with in accordance with AWH’s established disciplinary procedures.

However, if an employee is considered to be so affected by the use of alcohol or any controlled substance that he/she represents a significant risk to the health and safety of himself/herself, or to any other person, this shall be regarded as gross misconduct and his/her employment with the AWH shall be terminated immediately.”

[10] The evidence before the Commissioner showed the way in which this distinction was applied in practice. On the day that Mr Briggs was first directed to undergo the test (which was part of a “blanket” test of all employees), a number of other employees tested positive under the AS 4308 cut-off levels. However, they were not dismissed or even sent home; they were allowed to return to the workplace, but not permitted to operate machinery, and were subsequently required to undergo another test 15. Inferentially this must reflect a judgment made by relevant AWH managers as to the extent of the impairment, if any, of these employees. It indicates that the urine test was not in itself being used as a test for impairment.

[11] The conclusion that the Policy did not confine itself to testing for impairment essentially disposes of Mr Briggs’ main point. We would add that the evidence also demonstrated a number of other matters relevant to the reasonableness of the direction given to Mr Briggs. The Policy was consistent with standard practice in the Western Australian resources industry (to which AWH provides services under contract). 16 A number of AWH’s clients had imposed contractual requirements concerning drug and alcohol testing on AWH, including one client which required that no work be performed under the contract with that client by an employee while the employee “had a measurable presence of alcohol or other substances ... [as] shown by a breathalyser, urine or blood test”.17 AWH had conducted blanket urine testing of all employees in every year except 2011 since the Policy was first introduced in 2004, and there was no evidence that any employee other than Mr Briggs had ever complained about the mode of testing or refused to undergo a test.18 The AWH workplace is one in which many if not most employees are required to operate heavy machinery and equipment as part of their daily duties, making the Policy of critical importance to AWH in meeting its workplace health and safety obligations.19

[12] All these matters lead us to conclude that the Commissioner was correct in finding that the direction to Mr Briggs was both lawful and reasonable. The direction was specifically authorised by the Policy, with which Mr Briggs was contractually bound to comply, was consistent with common practice in the employer’s own enterprise as well as the industry in which it operated, and was reasonably adapted to the nature of Mr Briggs’ employment. It follows that Mr Briggs’ refusal to comply with that direction, after he was given a number of opportunities to comply over the period 21 to 26 September 2012 and warned that the consequence of continued non-compliance would be dismissal, constituted a valid reason for his dismissal. Simply put, he was engaged in conduct that was repudiatory of his employment contract.

[13] Mr Briggs’ point that a urine test conducted in accordance with AS 4308 is not itself a test for impairment is undoubtedly correct. Neither urine nor saliva can be used to detect or measure impairment directly. 20 That does not mean however that a urine test is irrelevant to impairment. A urine test, by detecting persons who have used drugs of abuse in the past, identifies persons in relation to whom there is a risk that they have attended or will attend for work in an impaired state. The fact that a saliva test may be better at identifying persons who are at the time of the test likely to be actually impaired, and is more consistent with maintenance of employees’ privacy, may mean that it would be preferred as the more fair and reasonable method of testing in the context of an industrial arbitration (as it was in Shell and Endeavour Energy). However, it is not sufficient to permit the direction to Mr Briggs to undergo a urine test to be characterised as being not reasonable.

[14] It is very regrettable that Mr Briggs put himself in a position where his continuing employment stood or fell on the narrow question of whether his employer’s direction for him to undergo a urine test was lawful and reasonable. Mr Briggs told us, and we accept, that he had no personal concern as to what the outcome for him would be if he took either a urine test or a saliva test; to him it was a matter of principle. AWH had no criticism of his work performance, but needed to vindicate its capacity to require employees to be drug-tested in accordance with its Policy in the context of a safety-critical work environment. Mr Briggs, in his capacity as a self-represented litigant, has through his ability to clearly articulate his case before the Commission demonstrated that he is a person of competence and capability.

[15] Moreover, although he appears not to have been aware of it, Mr Briggs did have open to him a course by which he could have agitated his concerns about urine testing under the Policy without having to refuse a lawful and reasonable direction of his employer. His employment was covered by an enterprise agreement approved under the Fair Work Act 2009, the AWH - National Union of Workers Certified Agreement 2011 21. Clause 11 of that agreement, entitled “Avoidance of Industrial Disputes”, contains a dispute resolution procedure that has as part of its object “to promote the resolution of disputes by measures based on consultation, co-operation and discussion”22. It provides for “an orderly and just method of reviewing an issue on its merits”23 by allowing any employee to pursue a grievance up the chain of management and, if the matter remains unresolved, to have it determined by way of a decision of this Commission. Mr Briggs was, to borrow Justice Murphy’s expression, “entitled to be an agitator”24, but there was a proper way for him to agitate his issue in the workplace which did not require him to defy his employer’s direction.

[16] Section 400(1) of the Fair Work Act requires that we are not to grant permission to appeal in this case unless we consider that it is in the public interest to do so. For the reasons we have stated, the public interest issues associated with urine testing versus saliva testing do not properly arise for consideration in this case. Mr Briggs ran his case on the basis that the Policy was concerned with testing for impairment only, and thus a direction for him to undergo a urine test which was incapable of detecting impairment was not reasonable. The Commissioner correctly rejected this contention. No public interest issue arises in that connection. Accordingly we must refuse permission to appeal.

VICE PRESIDENT

Appearances:

R. Briggs on his own behalf

J. Tracey of counsel with A. Lui for the Respondent

Hearing details:

2013.

Perth:

28, May.

1 [2012] FWAFB 4998 at footnote 18

2 See Endeavour Energy v CEPU [2012] FWA 1809 at [41]: “... it [urine testing] 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.”

3 (1998) 82 IR 162

4 At 168

5 [2008] AIRC 510 at [121]-[122]; affirmed on appeal in [2009] AIRCFB 428.

6 [2010] NSWIRComm 1068 at [112]

7 [2011] FWA 8288 at [26]-[29]

8 [2012] FWA 1809 at [41]

9 [2012] FWAFB 4998 at [67]

10 [2013] FWC 2017

11 At [59]-[77]

12 At [87]

13 (1938) 60 C.L.R. 601 at 622

14 At [59]