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.