[2015] FWC 2384
The attached document replaces the document previously issued with the above code on 8
April 2015.
Correcting typographical error in paragraphs [28] and [31]. The word “verses” is replaced
with “versus”.
Lidia Susac
Associate to Commissioner Cambridge
10 April 2015.
1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Port Kembla Coal Terminal Limited
(C2014/1370)
COMMISSIONER CAMBRIDGE SYDNEY, 8 APRIL 2015
Dispute settlement procedure - dispute about requirement for urine sampling procedure for
workplace drug testing - assertion that any requirement for an employee to provide a urine
sample was unjust and unreasonable - workplace drug testing regime introduced with agreed
oral fluid and urine sampling with option for employee to refuse to give a urine sample -
employer’s intention to utilise both oral fluid and urine sampling - benefits of utilisation of
both oral fluid and urine sampling - urine sampling opposed upon privacy grounds -
requirement to provide urine sample not unjust or unreasonable - no intervention of
Commission warranted - application dismissed.
[1] This matter involves an application made pursuant to section 739 of the Fair Work Act
2009 (the Act), for the Fair Work Commission (the Commission), to deal with a dispute in
accordance with a Dispute Settlement Procedure (DSP). The application was lodged at
Sydney on 1 August 2014. The application was made by the Construction, Forestry, Mining
and Energy Union (the CFMEU) and taken against Port Kembla Coal Terminal Limited (the
employer or PKCT).
[2] The Commission is empowered to deal with the matter by virtue of a DSP found at
Clause 6 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012 (the
Agreement). The question in dispute involves the introduction by the employer of a
workplace drug testing regime which has also been referred to as the Alcohol and Other
Drugs Standard (the AOD Standard).
Background
[3] In July 2014 the employer advised the CFMEU that it intended to implement a new
workplace drug testing regime on and from 1 August 2014, even though the CFMEU was
opposed to certain aspects of the drug testing regime. The parties had been unable to finalise
agreement on particular aspects of the drug testing regime despite considerable success in
respect to the broad negotiations which have been undertaken in the months prior to August
2014.
[4] The CFMEU then filed the dispute notification in this matter. The employer, to its
credit, agreed to delay the implementation of the new drug testing regime until 10 August
[2015] FWC 2384 [Note: An appeal pursuant to s.604 (C2015/2695) was
lodged against this decision - refer to Full Bench decision dated 19 August
2015 [[2015] FWCFB 4075] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
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[2015] FWC 2384
2
2014, so as to enable the commencement of proceedings in this matter to occur prior to the
introduction of any new workplace drug testing regime.
[5] On 7 August 2014 the Commission held a conference of the parties which included
extensive conciliation discussions. These discussions established what may be described as a
partial agreement which provided for the commencement of the workplace drug testing
regime on particular terms and arrangements which included an anticipated arbitration of one
significant issue of contest.
[6] The significant issue of contest arose from opposition to any requirement for
employees to submit to urine sampling as part of the workplace drug testing regime. Initially,
the employer sought to utilise only urine sampling for the new workplace drug testing regime.
However, it was agreed that the workplace drug testing regime would commence with the
utilisation of oral fluid sampling and urine sampling would be utilised only on a voluntary
basis. The parties agreed that the Commission would be requested to arbitrate the question of
whether the employer could require employees to submit to urine sampling.
[7] Subsequently the question of whether the employer could require employees to submit
to urine sampling as part of its workplace drug testing regime was the subject of a Hearing
conducted on 12 November 2014 and 16 January 2015. At the Hearing, Ms L Doust, counsel,
together with Ms J Gray, appeared for the CFMEU, and Mr B Rauf, counsel, instructed by Ms
A Ngo, solicitor from Ashurst lawyers, appeared for the employer.
[8] At the Hearing, evidence was taken from three expert witnesses. The CFMEU called
Dr Michael Robertson, a clinical and forensic toxicologist, who provided expert witness
evidence. The employer adduced expert witness evidence from Professor MacDonald
Christie, Professor of Pharmacology and Associate Dean Research in the Sydney Medical
School at the University of Sydney. In addition, the employer provided expert evidence from
Mr Peter Simpson, a psychologist and Managing Director of BSS Corporate Psychology
Services.
[9] There was further witness evidence provided for the CFMEU by Mr Adam Giddings,
and for the employer by Mr Peter Green. In addition, the employer introduced without
objection, two witness statements of Mr Peter Calder.
The CFMEU Case
[10] The submissions made by the CFMEU noted that the parties had been able to reach
agreement on all aspects of the employer's workplace drug testing regime (or AOD Standard)
other than the utilisation of urine sampling. The CFMEU acknowledged that the employer had
initially sought to introduce a workplace drug testing regime that involved only urine
sampling. However, this position was modified and the employer now sought to adopt a
system whereby the testing randomly utilised either oral fluid or urine. Notwithstanding this
alteration, the CFMEU maintained its opposition to the utilisation of urine sampling even if
conducted in conjunction with oral fluid sampling.
[11] Ms Doust made submissions which characterised the dispute as a contest between the
use of urine or oral fluid as the method for drug testing in the workplace. Consequently, Ms
Doust made extensive submissions in support of the use of oral fluid sampling and which
were strongly critical of particular aspects of urine sampling.
[2015] FWC 2384
3
[12] In summary, it was submitted by Ms Doust that oral fluid sampling was a widely used
method which in most instances, provided superior or equivalent means for identification of
the presence of drugs which may pose a health and safety risk. Ms Doust referred to various
decisions of both this Commission and other Courts and Tribunals which had supported the
use of oral fluid sampling in workplace drug testing regimes. In particular she referred to the
decision of Hamberger SDP in the case of Endeavour Energy v Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and
Others1 (Endeavour).
[13] Ms Doust submitted that the use of urine sampling introduced a number of undesirable
and deleterious consequences. Ms Doust submitted that the most significant criticism of urine
sampling involved the matter of the right of privacy of employees. Ms Doust said that the use
of urine sampling involved an illegitimate interference with the privacy of an employee. Ms
Doust stated that urine sampling identified an employee’s historical use of drugs which may
bear no relevance to their capacity to safely perform work. Ms Doust submitted that this was
an entirely inappropriate and unacceptable intrusion by the employer into the private affairs of
its employees.
[14] In further submissions, Ms Doust rejected that any alleged deficiencies with oral fluid
sampling were of any consequence when assessed against the privacy intrusions created by
urine sampling. Ms Doust acknowledged that oral fluid sampling could not satisfactorily
identify the presence of benzodiazepines. However, she submitted that this deficiency could
be overcome if the employer decided to send oral fluid samples for confirmatory laboratory
testing. Further, Ms Doust submitted that the evidence established that benzodiazepines were
not a particular drug that was problematic at this workplace and were, as a class of drug, more
generally considered a lower order problem in respect to illicit workplace drug use.
[15] The submissions made by Ms Doust also rejected that any particularly significant
problem arose in respect to evidence that oral fluid sampling would be much less likely to
identify the presence of Cannabinoids, specifically delta-9-tetrahydrocannabinol (THC), in
circumstances where THC was not introduced via smoking but instead by ingestion such as
eating cookies made of hashish.
[16] Ms Doust also strongly rejected the proposition that there was a legitimate workplace
health and safety benefit obtained from the wider window of detection that was provided by
urine sampling. Ms Doust said that the employer was not entitled to intrude into the private
lives of its employees and there was no demonstrated safety benefit obtained from gaining
any historical information regarding drug use. Conversely, Ms Doust stressed that oral fluid
sampling was a much more effective means for identifying recent drug use which would have
direct relevance to an employee's fitness for work. Ms Doust also submitted that the means of
providing a urine sample in a jar was a much more intrusive process than the swab used for
obtaining oral fluid.
[17] In conclusion, the CFMEU submitted that urine testing was an unreasonable, intrusive
imposition on the workforce and an unreasonable form of testing to apply in circumstances
where oral fluid provided a most appropriate alternative. Ms Doust urged the Commission to
arrive at the same conclusion as was reached by Hamberger SDP in the Endeavour Decision
and to hold that it would be unjust and unreasonable for the employer to require its employees
to submit to urine sampling as part of its workplace drug testing regime.
[2015] FWC 2384
4
The Employer’s Case
[18] The submissions made on behalf of the employer commenced with a summary of
various decided cases which dealt with the role of the Commission in matters involving a
challenge to the employer's exercise of its managerial prerogative. In this regard it was
accepted that the question for determination in this instance was whether or not it was
unreasonable for the employer to compel its employees to undergo urine testing.
[19] The employer’s submissions stressed that the determination of the question under
examination in this case required consideration of all of the relevant circumstances. The
employer submitted that there have been various decisions of both the Commission and other
Tribunals which had, depending upon the particular circumstances, either endorsed or rejected
the use of urine testing. The employer submitted that in the circumstances of this case it had
not been demonstrated that the position adopted by the employer was unjust or unreasonable
so as to warrant intervention by the Commission.
[20] The submissions made by Mr Rauf highlighted various issues which he said
established the reasonableness of urine testing. Mr Rauf submitted that evidence of the
common use of urine testing in other coal export terminals on the east coast of Australia
demonstrated the broad acceptance of this method of sampling in workplace drug testing
regimes. Further, according to the submissions made by Mr Rauf, an evaluation of the various
aspects of the expert evidence demonstrated that there were a number of aspects of urine
testing which were superior or more beneficial when assessed against oral fluid testing.
[21] Mr Rauf submitted that oral fluid was not suitable for detection of benzodiazepines
nor was it suitable for the sensitive detection of THC or ingested THC, and, in addition, it was
inferior to urine testing in respect to reliable detection of long-term use of opioids, cocaine
and amphetamine related psycho stimulants.
[22] It was further submitted by Mr Rauf that in the particular circumstances revealed in
this case the AOD standard which the employer sought to adopt would involve a combination
of random oral fluid and urine testing. Mr Rauf said that the use of both methods in random
application would overcome some of the limitations of either method if used in isolation.
Further, Mr Rauf submitted that the expert evidence established that the use of both methods,
oral fluid and urine, established a greater level of deterrence as drug users could not easily
circumvent a positive result if they were unaware of which particular method of testing may
be utilised on a particular day.
[23] Mr Rauf made further submissions which reflected upon a variety of other aspects of
the employer's workplace drug testing regime. In particular Mr Rauf submitted that in this
case the AOD Standard had been developed over several months and involved broad
agreement in most respects. Mr Rauf submitted that the AOD standard had adopted a very
supportive approach which included voluntary self testing prior to commencing work, and an
emphasis on rehabilitation as opposed to disciplinary action. Mr Rauf said that these were
important factors relevant to consideration of the particular circumstances of this case.
[24] The employer submitted that the Commission should reject the proposition advanced
by the CFMEU that the AOD Standard involved an unreasonable or unjust obligation on
employees. Mr Rauf submitted that the opposition to urine testing was ideological and in the
[2015] FWC 2384
5
particular circumstances of this case, urine testing in combination with oral fluid testing, did
not involve any unreasonableness.
[25] Mr Rauf further submitted that the circumstances in this instance could be clearly
distinguished from the position in the Endeavour case. Mr Rauf stressed that the onus was on
the applicant, the CFMEU, to establish that the AOD Standard introduced unreasonableness
to the extent that the Commission should interfere with the right of the employer to manage
its operation in a manner which it believed properly discharged its obligation to provide for a
safe workplace. Mr Rauf submitted that the CFMEU had not discharged this onus and he
urged that the Commission refrain from interfering in the employer's proposed introduction of
the AOD Standard which included, inter alia, random oral fluid and urine testing.
Consideration
A Significant Controversy
[26] The dispute in this matter has involved a contest about the utilization of urine
sampling as part of a workplace drug testing regime. In recent years there has been significant
controversy surrounding what may be described as the debate as to whether urine or oral fluid
(aka saliva), was the most appropriate method of sampling for workplace drug testing. This
controversy was eloquently summarised in the opening paragraphs of the Full Bench Decision
in the case of Mr Raymond Briggs v AWH Pty Ltd 2(AWH).
[27] It is relevant to refer to the following extracts from the AWH Decision:
“[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
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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
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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....”
[28] There is undoubted controversy surrounding the argument as to which workplace drug
sampling method is best, urine or oral fluid. The evidence, expert and otherwise, which was
presented in this case, has clearly confirmed the ongoing and developing nature of the
argument about urine versus oral fluid. In very broad terms, urine can be considered as the
more established method for sampling and oral fluid sampling techniques and equipment
involve the introduction of new methods and technologies. Further, in general, urine sampling
will detect intoxication associated with long-term drug use while oral fluid will enable
detection of more acute intoxication associated with recent drug use.
[29] The evidence in this case, as with previous matters such as the Endeavour Decision,
has established that each method has certain benefits and shortcomings. Significantly, the
identified positives and negatives for each method change over time as each method is
impacted by technological and scientific developments. In addition, the efficacy of each
method of sampling is impacted by changed social circumstances involving issues such as
increasing and decreasing use of particular classes of different drugs. The insidious
proliferation of methylamphetamine use is an inescapable case in point.
The Best of Both Worlds
[30] Importantly, as this case has developed the employer has altered its position from
initially proposing sampling by urine only, to the adoption of randomly selected use of both
urine and oral fluid sampling. Consequently, much of the argument about which is best, urine
or oral fluid, becomes academic if both methods are randomly utilized.
[31] The applicant has maintained opposition to the use of urine sampling because of
important privacy issues in circumstances where is contends that oral fluid alone provides a
sufficient method of sampling to achieve the workplace safety objectives which underpin a
drug testing regime. Consequently, in this case the argument has shifted to a cost benefit
analysis involving assessment of the combined operation of both methods, oral fluid and
urine, versus the positives and negatives of oral fluid alone.
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[32] The expert evidence provided by Dr Robertson included a scientific research paper
authored by Lee and Huestis3, (the Lee and Huestis paper). This document also formed
Exhibit 9. Although the Lee and Huestis paper focused upon cannabinoids, it also provided
some helpful general commentary about the particular benefits of each testing method, oral
fluid and urine. For example:
“Therefore, while urine testing is useful for long-term drug monitoring such as in
workplace settings, OF testing would be preferable to identify recent drug intake in
DUID settings.”4
[Note: OF = Oral Fluid, DUID = Driving Under the Influence of Drugs]
“... because the goals of workplace drug testing are pre-employment screening and
drug use deterrents over the course of employment, cut-off criteria that allow long
detection windows would be beneficial. In contrast, it is important for DUID and post
accident investigations to identify recent drug intake reflecting impairment.”5
[33] In addition to avoiding what can be described as the identified scientific shortcomings
of either sampling method, the random utilisation of both oral fluid and urine sampling
provides a superior deterrent against drug use. There are various widely disseminated
techniques which can be used to adulterate either an oral fluid or a urine sample. It is
unquestionably more difficult to be equipped with adulteration materials and capacity if the
method of sampling is unknown. The greater deterrent which is created by the utilisation of
both sampling methods was acknowledged by the experts who gave evidence and in particular
by Dr Robertson6.
[34] Consequently when the Lee and Huestis paper is included as part of an overall
consideration of a workplace drug testing regime where both methods, oral fluid and urine
would be utilised, it would appear that the combination of both methods would in general
terms provide; (a) long-term drug monitoring benefits, and (b) the identification of more
immediate acute drug induced impairment, and (c) a superior deterrent against drug use.
The Privacy Issues
A Trade-off of Discomfort for Superior Detection and Deterrent
[35] The first aspect of the alleged infringement of privacy of an employee who is required
to provide a urine sample, involved what was described as “the physical intrusion of requiring
a person's bodily integrity to be interfered with by requiring from them a sample of their own
body.”7 It was asserted that the provision of a urine sample in a jar was more intrusive in its
nature than the intrusion created by the taking of the swab of oral fluid.
[36] As a general proposition I think it is reasonable to accept that there would be a greater
degree of self-consciousness, or discomfort or even embarrassment associated with providing
a urine sample as compared with an oral fluid swab. I believe that it would be fair to say that
most people would prefer not to have to provide a urine sample and would prefer to provide
an oral fluid sample instead.
[37] However, any discomfort or even embarrassment that may be associated with
providing a urine sample must be evaluated against important countervailing factors.
Importantly, any discomfort or embarrassment about providing a urine sample would be of
[2015] FWC 2384
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negligible consequence if such discomfort or embarrassment avoided death or debilitating
injury suffered at work. The balance, in my view, would overwhelmingly favour the benefits
of adoption of a superior drug detection and deterrent mechanism for the cost of the
discomfort, inconvenience or embarrassment of having to provide a urine specimen.
[38] In addition, in recent years there has been widespread introduction of workplace drug
testing regimes which involve urine sampling. Although urine sampling in the workplace
could not be described as commonplace it has become increasingly more prevalent
particularly in heavy and transport industry sectors. Consequently, there has been a steadily
expanding exposure to urine sampling across the broader workforce.
An Innocent Worker Wronged - Fact or Fiction
[39] The other aspect of privacy concern has involved the more extensive information
which may be obtained from urine sample results. As was identified in the Endeavour and
AWH Decisions, urine sampling when compared to oral fluid sampling, provides greater
potential for an employer to obtain information about long-term drug use involving the
private activities of an employee at times significantly disconnected from attendance at the
workplace. Consequently there is a legitimate basis for concern that an employer would
obtain information about the private activities of an employee which it had no right to intrude
upon.
[40] The potential for urine sampling to unreasonably intrude into the private lives of
employees has been seen as a realistic basis upon which to reject it as an appropriate method
of workplace drug testing when oral fluid was available as a preferable alternative. In the
Endeavour Decision it was stated that:
“[41] Not only is urine testing potentially less capable of identifying someone who is
under the influence of cannabis, but it 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.” Emphasis added
[41] Unless the policy that was proposed in the case of Endeavour adopted immunoassay
screening test cut-off levels below those set by the relevant Australian Standard, (AS/NZS
4308:2008) I am, with respect, unable to accept that a positive result would “in no way
affect” capacity to safely perform work.
[42] Urine sampling will undoubtedly detect the presence of the metabolite of a “parent”
drug over periods of time considerably beyond that for which oral fluid will detect the
presence of the “parent” drug or an active derivative of it. Consequently, urine sampling is
recognised to have a far more extensive window of detection than oral fluid, such that it is
considered to provide detection of a drug at a time considerably after the period of acute
intoxication.
[43] However, detection of a drug, or more accurately the metabolite of it, at or above the
cut-off levels fixed by Table 1 of AS/NZS 4308:2008 does not, in my view, translate into the
prospect that such detection does not indicate there to be no affect on the capacity of an
employee to do their job safely simply because it was detected some considerable time after
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the drug was imbibed and its acute intoxication had subsided. Most toxicologists are
understandably reluctant to proffer any suggestion of alignment of a level of presence of a
drug with a particular level of functional impairment. However, the detection of a drug (or its
metabolite) at or above the levels set by the relevant Australian Standard for immunoassay
screening test cut-off, must represent a measure that can be logically inferred to have some
impact on capacity to perform work related functions, irrespective of the time period that may
have elapsed since the drug was taken.
[44] Workplace drug testing regimes are inherently an intrusion into the private lives of
employees as they almost always involve the potential for detection of drug use which occurs
in a person’s private life. Hopefully not many workers consume illicit drugs at work. It seems
to me to be completely irrelevant if one, or four, or more days have elapsed between
consumption of the drug and detection of it (or its metabolite) at the workplace. What matters
is the detection of the drug at a level which can be reasonably inferred to create a recognised
risk to the safety of that employee and others.
[45] A proposition which has been advanced as a theoretical example of urine sampling
illegitimately intruding into the private life of workers has involved occasional cannabis users.
Cannabis is recognised as the second most prevalent drug, after alcohol, which is identified in
workplace testing regimes. The opposition to urine sampling has frequently suggested that it
provides potential identification of long term occasional use of cannabis (THC) which, in
effect, is an illegitimate intrusion into the private affairs of a worker when that person
allegedly does not present for work in a state of impairment or unfitness for work.
[46] As previously explained, I believe that a test result at or above the relevant Australian
Standard cut-off levels must imply in general terms, some potential for or actual impairment
which gives rise to a safety risk. There is general acceptance that an oral fluid sample test
result at or above the cut-off level for THC set by AS4760-2006 at 25ng/mL (=25ug/L), is an
appropriate safety detection trigger for workplace drug testing regimes. I am unable to
understand why a urine sample result at or above the cut-off level for Cannabis metabolites
set by AS/NZS 4308:2008 at 50ug/L would be considered to “in no way affect” capacity to
perform work safely.
[47] Further, it is important to consider the scientific research which has been conducted
into the long-term effects of regular cannabis consumption. In this case the Lee and Huestis
paper added to the body of material which supports the concerns that were persuasively
expressed by Professor Christie about the inadequate recognition of the effects of long-term
cannabis use and what he believed to be the need to reduce the cut-off levels for THC and its
predominant metabolite, 11-nor-9-carboxy-THC (THCCOOH) in the relevant Australian
Standards. Relevantly, the Lee and Huestis paper included the following:
“In chronic cannabis smokers during abstinence, low THC concentrations were
detected in blood for up to 30 days, and psychomotor performance in tasks validated
to predict on-the-road impairment remained impaired compared to occasional
smokers for 21 days. In other studies, neurocognitive performance improved over 30
days in chronic frequent cannabis smokers, but was still impaired compared to
occasional smokers for 7-28 days.”8
[48] There is compelling scientific evidence to conclude that the detection of cannabis
(specifically THCCOOH) by way of urine sampling at levels at or above the Australian
[2015] FWC 2384
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Standard AS/NZS 4308:2008 immunoassay screening cut-off level of 50 ug/L, at extensive
time intervals (days or even weeks) after cannabis was consumed, represents valid and
appropriate identification of a safety risk. Chronic and even occasional cannabis users can be
intoxicated for considerable periods after they have stopped taking the drug.
[49] In summary, detection of cannabis metabolites and other drugs at or above the
immunoassay screening cut-off levels established by Table 1 of AS/NZS 4308:2008 can
logically be translated into a safety risk that requires action. The capacity for such detection
should not be avoided upon the erroneous proposition that an innocent worker may be
subjected to an unreasonable intrusion into their private lives. Detection of the drug at or
above the cut-off level expunges innocence.
Both Better Than Either
[50] Although I am unable to accept the validity of the privacy concerns advanced as
opposition to urine sampling, it must be recognised that oral fluid sampling has considerable
benefits over urine sampling particularly in respect to its enhanced capacity to identify
immediate acute intoxication which may not be detected by urine sampling. Consequently, if
presented with an “either or scenario” oral fluid sampling would probably represent, on
balance, a preferable option to urine sampling.
[51] As previously mentioned, the circumstances of this case did not involve an “either or
scenario.” The employer has sought to, in effect, add urine sampling to its existing oral fluid
sampling. Although there is an absence of any legitimate privacy concerns upon which to
reject the addition of urine sampling, it is also necessary to briefly recognise the additional
benefits that are derived from urine sampling.
Some Particular but Important Shortcomings of Oral Fluid
Benzodiazepines
[52] The current level of technology does not enable oral fluid sampling devices to
adequately detect for the presence of benzodiazepines. In recent years there has been a fairly
rapid improvement in the specificity and sensitivity of oral fluid sampling devices and there
may be, in the future, capacity for oral fluid detection of benzodiazepines. However, at the
present time, a workplace drug testing regime without urine sampling will essentially fail to
detect the presence of benzodiazepines at onsite screening. It must be recognised that
benzodiazepines do not represent one of the more significant drugs of concern in respect to
workplace safety but nevertheless it would be preferable to have a regime which included
their detection as part of onsite screening.
Long-Term Drug Use - “Coming off Meth” as But One Example
[53] As mentioned earlier in the Decision, oral fluid sampling will not adequately detect
long-term cannabis use. In something of a reverse scenario to urine sampling which may not
detect recent consumption of THC, oral fluid sampling is unlikely to detect levels of
THCCOOH associated with long-term cannabis use.
[54] In addition, the expert evidence confirmed that oral fluid sampling was an inferior
means to detect long-term use of other drugs such as opioids, cocaine and amphetamine
[2015] FWC 2384
12
related psycho stimulants. The wider window of detection was one of the primary aspects of
the opposition to urine testing.
[55] However, it is the wider window of detection which enables identification of long-
term drug use, (via levels fixed by AS/NZS 4308:2008). Any suggestion that this is detection
without relevant safety implications is further dispelled by evidence about the “hangover”
effects of drugs like methylamphetamine. As just one example, the evidence of the
physiological and psychological impacts of withdrawal from methylamphetamine provides
compelling basis to detect long-term drug use.
THC Eaten Rather than Smoked
[56] Further, oral fluid sampling is unlikely to detect THC which was eaten rather than
smoked. In a situation which involved only oral fluid drug testing, a chronic cannabis user
could conceivably avoid detection by ensuring that he or she only smoked cannabis at times
that were sufficiently before commencement of work, and perhaps ate substances containing
THC at times likely to be closer to working time.
Other Important Components of a Drug Testing Regime
[57] There are aspects of any workplace drug testing regime other than the method of
sampling which are important and which impact upon the issue of whether oral fluid or urine
or both sampling methods, should be found to be reasonable and appropriate. It would be
unrealistic to attempt to codify workplace drug testing by way of any universal rules.
Workplaces have different safety risks. For example, it would seem to be largely unnecessary
to implement a workplace drug testing regime in the case of a call centre. On the other hand,
heavy and transport industries obviously require workplace drug testing.
[58] In workplaces where occupational and public safety risks are present, drug and alcohol
testing regimes are mechanisms which improve safety for workers and the general public.
Individuals who attend these “high risk” workplaces under the influence of drugs or alcohol,
at a level of recognised impairment, are likely to endanger the lives of others. Workplace drug
testing, if properly conducted and policed, should not be misconceived as an invasive and
punitive threat to the welfare of workers.
[59] However, the apprehension that employees often have about drug and alcohol testing
regimes is understandable. In particular, the identification of the use of illicit drugs or
disproportionate and unsympathetic disciplinary reactions to positive and confirmatory test
results, naturally creates concerns in the mind of some workers. As a matter of general
practice, drug or alcohol addiction or abuse issues which have been identified through
workplace testing, should be recognised as problems that require a treatment program and not
necessarily disciplinary action.
[60] The particular facts and circumstances of each case of drug detection in the workplace
need to be carefully assessed and judged accordingly. Importantly there should be no
automatic or prescribed approach to any consequent disciplinary action. In this instance the
AOD Standard includes a number of important, commendable components such as:
voluntary self testing
assistance to an employee who commits to a recognised rehabilitation program
[2015] FWC 2384
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no automatic or prescribed disciplinary action
a case management approach to any positive confirmatory result
[61] The AOD Standard could benefit from a more expansive articulation of the
confidentiality arrangements that would be provided in respect to both any non-negative
immunoassay result and any positive confirmatory laboratory result.
Conclusion
[62] In this dispute the applicant, the CFMEU, has sought that the Commission make a
finding that the introduction of compulsory urine sampling as part of the employer’s
workplace drug testing regime would be unreasonable or unjust. The CFMEU has asserted
that the Commission should determine that the introduction of compulsory urine sampling
represented an unreasonable intrusion upon the privacy of employees in circumstances where
the existing, alternative oral fluid sampling provided a viable and appropriate method of
workplace drug testing.
[63] The employer has rejected the proposition that compulsory urine sampling represented
management action that was unreasonable or unjust. The employer has asserted that the
randomly selected introduction of compulsory urine sampling, in addition to existing oral
fluid sampling, provided significant workplace safety benefits.
[64] The issue in contest has traversed a matter of notable controversy regarding the
competing arguments for and against oral fluid or urine sampling as preferable methods for
adoption in workplace drug testing regimes. Importantly in this instance, by the time the
matter had progressed to arbitration, the employer had not sought to adopt a preference for
either method but instead decided to implement both methods in random combination.
[65] The CFMEU maintained opposition to any compulsory urine sampling on the basis
that it was an unacceptable and unreasonable intrusion into the privacy of employees when
the existing oral fluid sampling was, in many respects, a more suitable method of sampling
which met the safety objectives of a workplace drug testing regime.
[66] Consequently the Commission has been required to assess the benefits that may be
obtained from the adoption of both methods of sampling in random combination, balanced
against the privacy detriments that would be experienced by employees who were required to
undertake urine sampling.
[67] A detailed analysis of the competing positions has led me to conclude that the benefits
that would be obtained by the adoption of both methods of sampling in random combination
significantly outweigh any privacy detriments that could be identified.
[68] There are a range of important benefits that are derived from the random operation of
both oral fluid and urine sampling. The use of both methods overcomes the scientific and
technological deficiencies that each method cannot avoid if one method is used in isolation.
Further, the use of both methods provides significantly enhanced deterrent properties. Against
these significant attributes the alleged privacy intrusions are matters of little realistic
consequence.
[2015] FWC 2384
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[69] In summary, a blunt distillation of the contest in this case and its determination can be
described as a choice between private lives or saving lives and I have opted for saving lives.
[70] In view of the conclusions that I have reached there is no basis to warrant the
intervention of the Commission. The application is dismissed and the proceedings are
concluded accordingly.
COMMISSIONER
Appearances:
Ms L Doust of Counsel, together with Ms J Gray appeared for the Construction, Forestry,
Mining and Energy Union.
Mr B Rauf of Counsel, instructed by Ms A Ngo, solicitor from Ashurst Australia appeared for
Port Kembla Coal Terminal Limited.
Hearing details:
2014.
Sydney:
November 12.
2015.
Sydney:
January 16.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562829
1 Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia and Others, [2012] FWA 1809.
2 Mr Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316.
3 “Current knowledge on cannabinoids in oral fluid” by Dayong Lee and Marilyn A. Huestis, published in Wiley Online 25
August 2013.
4 Ibid @ page 96.
5 Ibid @ page 105.
6 See in particular, Transcript @ PN251.
7 Transcript @ PN1336.
8 “Current knowledge on cannabinoids in oral fluid” by Dayong Lee and Marilyn A. Huestis, published in Wiley Online 25
August 2013, @ page 97.
