An FWC full bench has upheld Port Kembla Coal Terminal’s use of both urine and saliva testing in its drug and alcohol enforcement policy.
The bench, consisting of Senior Deputy President Jonathan Hamberger, Deputy President Val Gostencnik and Commissioner Michael Roberts, was ruling on an appeal by the CFMEU against an earlier finding by Commissioner Ian Cambridge which had approved the testing regime.
Although the bench agreed with the CFMEU (which was opposed to the inclusion of urine testing) that Commissioner Cambridge had erred in his assessment of the expert evidence – in its reconsideration of the matter it found that Port Kembla Coal Terminal (PKCT) was entitled to implement a random system of both oral and urine testing.
The bench said PKCT was obliged to ensure, so far as was reasonably practicable, the health and safety of its employees and contractors at work.
This required it to eliminate, if possible, the risk that employees might be impaired by drugs or alcohol and pose a safety risk.
To do this, the bench said, “PKCT is certainly entitled to implement a system of random drug testing to assist it in discharging its obligation”.
"While neither method [oral or urine] is fool proof, the evidence indicates that oral fluid testing will generally identify employees who have recently consumed a drug and are therefore likely to be impaired. Urine testing will identify whether an employee has taken a drug in the preceding days or even weeks – including at times when there is no serious risk that the employee will still be impaired when they attend for work,” the bench said.
It said that while urine testing might give positive results for workers not actually impaired – expert evidence agreed that a random system using both methods “would enhance the deterrent value of the testing”.
According to the bench, both methods also allowed for a wider range of drugs to be screened.
PKCT also gave evidence that its parent company was using urine testing in other facilities throughout Australia.
Case management approach crucial
In finding in favour of the dual testing approach, the bench said it had given significant weight to the way in which PKCT intended to use positive test results.It said the company would use a case management approach with regard to the circumstances of individual workers.
“While acknowledging that in some circumstances a non-negative result could lead to disciplinary action, other outcomes could include rehabilitation, counselling, participation in the Employee Assistance Program, scheduled testing and the development of a return to work plan,” the bench said.
It concluded that in this particular case, the advantages of a dual system would outweigh the privacy concerns and “it would not be unjust or unreasonable for PKCT to implement its proposed AOD Standard and associated testing method”.
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