[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.
| [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.] |
| FAIR WORK COMMISSION |
DECISION |
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).
[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 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.
[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.
[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 Others 1 (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.
[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 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.
[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 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 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.
[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.
[32] The expert evidence provided by Dr Robertson included a scientific research paper authored by Lee and Huestis 3, (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 Robertson 6.
[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.
[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 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.
[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 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 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.
[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.
[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.
[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 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.
[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.
[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
● 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.
[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.
[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.
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.
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