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[2013] FWCFB 3316
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 [PR 535351] 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 CEPU1 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
1 [2012] FWAFB 4998 at footnote 18
AUSTRALIA FAIR WORK COMMISSION
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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
Branch3 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 CFMEU5, 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
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.
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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 Wales6. 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”.
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]
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[7] In the decision of Commissioner Williams the subject of this appeal10, 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
Sullivan13 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 found14) 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 [2013] FWC 2017
11 At [59]-[77]
12 At [87]
13 (1938) 60 C.L.R. 601 at 622
14 At [59]
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[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 test15. 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
15 Ex A1, Statement of Raymond Briggs dated 5 February 2013; Ex R3, Statement of Bernard Van Dyk dated 25 February
2013, paragraph 22.
16 Ex R2, Statement of John Ward dated 26 February 2013, paragraph 7.
17 Ex R2 paragraph 7 and attachment JW-2.
18 Ex R2 paragraphs 11, 42
19 Ex R2 paragraph 6
20 Endeavour Energy v CEPU [2012] FWA 1809 at [40]
[2013] FWCFB 3316
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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 201121. 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
21 [2011] FWAA 6121
22 Clause 11.1
23 Clause 11.2.2
24 Neal v The Queen (1982) 149 CLR 305 at 317
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
[2013] FWCFB 3316
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Appearances:
R. Briggs on his own behalf
J. Tracey of counsel with A. Lui for the Respondent
Hearing details:
2013.
Perth:
28, May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR537248
