Safety benefits of urine sampling outweigh privacy concerns: FWC
The Fair Work Commission (FWC) has ruled that an employer’s drug testing regime, which utilises a combination of random oral fluid and urine sampling, is not unjust or unreasonable.
Port Kembla Coal Terminal Limited (PKCT Limited) initially purported to introduce a drug testing regime involving urine sampling only. However, following opposition from the Construction, Forestry, Mining and Energy Union (CFMEU), PKCT Limited agreed to utilise oral fluid sampling in addition to urine sampling. The employer’s Alcohol and Other Drugs Standard (AOD Standard) accordingly adopted a combination of random oral fluid and urine testing methods.
The CFMEU pointed out the limitations of urine sampling in detecting recent drug use, and argued that the use of urine sampling interfered with employees’ privacy. The union stressed that urine sampling detected an employee’s historical use of drugs, which may not necessarily impact on the employees’ safety performance.
PKCT Limited argued that the combined and random use of both methods overcame the limitations of the individual testing methods. Further, the employer argued the selection of a random method provided greater deterrence for employees as it would make it more difficult for workers to circumvent a positive result.
The FWC accepted that it had preferred oral fluid sampling over urine sampling in earlier cases because of the limitations of urine sampling. However, the Commission noted that scientific and technological developments in the area, as well as changing social circumstances, also needed to be taken into account.
Commissioner Cambridge rejected the argument that detection of an employee’s historical drug use was an unreasonable intrusion into the employee’s private life if the metabolite of the drug detected was above the cut-off levels set out in AS/NZS 4308:2008. There was evidence that detection of a drug above the cut-off level in the standard could impact on a person’s capacity to perform work-related functions, the Commissioner said.
“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.”
While the Commissioner admitted that oral fluid sampling would be the preferred method where a single method was being adopted, he held that a combination of both methods provided the best of both worlds and thus did not amount to unreasonable action.
Commisioner Cambridge further acknowledged that urine sampling involved more discomfort for workers than oral fluid sampling. However, he held that such discomfort has to be balanced against the need to prevent injuries at work.
“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”, Commisioner Cambridge decided.
The FWC also commended PKCT Limited for providing voluntary self testing and access to rehabilitation, as well as for not making disciplinary action the automatic consequence of a positive result. The Commission did suggest, however, that PKCT Limited’s AOD Standard should more expansively articulate its confidentiality arrangements in respect of the drug testing results.
Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited [2015] FWC 2384
“This article originally appeared on CCH Australia and is reproduced with permission”
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