DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Endeavour Energy Network Management Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; The Association of Professional Engineers, Scientists and Managers, Australia
(C2019/3115)

Alleged dispute about a matter arising under an enterprise agreement - dispute filed by Endeavour Energy concerning proposed changes to its Alcohol and Other Drugs Procedure (‘AODP’) – electricity distribution and supply industry – high-risk and low-risk work – existing procedure result of earlier Commission proceedings at first instance and on appeal – ‘interest-based’ consultation with Unions and employees – no agreement reached – proposal to provide a BAC level of 0.00% for all employees – proposal to introduce random urine drug testing and oral fluid drug testing on a ‘blended’ (50/50) basis – benefits and detriments of urine and oral fluid testing – compliance with Australian/New Zealand standards – dual policy imperatives – deterrence – identification of drug and alcohol use affecting health and safety of employees – no testing regime detects or measures impairment for drugs and alcohol in the workplace – expert evidence differs in emphasis about preference for urine testing over oral fluid testing – experts agree that the two methods of testing have different benefits and disadvantages – insufficient or unsatisfactory evidence to justify change of BAC level of 0.00% for all employees - no justification for altering BAC levels from 0.02% for high-risk employee testing and 0.05% for all other employee testing – merit in adopting 50/50 ‘blended’ random urine and oral fluid testing for presence of drugs – acceptance that urine testing will detect long term or chronic drug use , detect a wider range of drugs and will reduce incidence of false non-negative results – omissions from existing AODP to be included in revised procedure – parties to prepare draft procedure in accordance with Commission’s conclusions – dispute otherwise resolved.

BACKGROUND

[1] On 16 May 2019, Endeavour Energy Network Management Pty Ltd (‘Endeavour’ or the ‘Company’) filed an application pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure (‘DSP’) of the Endeavour Energy Enterprise Agreement 2017 (the ‘Agreement’). The substance of the dispute is encapsulated in the relief sought by Endeavour which is set out at Q 3.1 of the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. It reads:

‘A determination by the Commission, upon arbitration of the dispute, that:

Endeavour Energy Network Management Pty Ltd may proceed to implement the new Alcohol and Other Drugs Procedure (AODP) which provides for:

(i) testing of alcohol to a Blood Alcohol Concentration (BAC) of 0.00% for all workers;

(ii) random testing for drugs by random selection between urine and oral fluid testing (with 50% of random tests being of both modalities);

(iii) second confirmatory drug testing follow a non-negative oral fluid test being by urine; and

(iv) "for cause", suspicion, return to work and targeted testing for drugs being by urine,

on the terms and for the purposes set out in the AODP.’

The identified respondents are three unions, namely the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’), United Services Union, and Professionals Australia (together, the ‘Unions’).

Endeavour’s Operations

[2] As an electricity distribution business, Endeavour supplies electricity to over one million customers in Greater Western Sydney, the Blue Mountains and the Midwest, the Southern Highlands, the Illawarra and the South Coast, covering 24,980 square kilometres. The infrastructure includes 433,100 power poles and streetlight columns, 164 zone substations, connected by 59,300 kilometres of power line.

[3] Endeavour is 50.4% owned by a consortium of long-term private investors, with 49.6% owned by the State of New South Wales, through a system established under the Electricity Retained Interest Corporations Act 2015 (NSW). The assets of the Endeavour business are subject to a 99-year lease from the NSW Government. The employees were transferred to Endeavour Energy Network Management Pty Ltd through the lease arrangement.

The present dispute

[4] It is noteworthy that Endeavour’s current Alcohol and Other Drugs Procedure (‘AODP’) was the subject of an arbitrated decision of the Commission (Hamberger SDP) in March 2012 in Endeavour Energy v CEPU and Others [2012] FWA 1809 (the ‘2012 Decision’). A number of expert witnesses in that case provided evidence in these proceedings. The 2012 Decision was unsuccessfully appealed to a Full Bench of the Commission in Endeavour Energy v CEPU and others [2012] FWAFB 4998.

[5] It is important to recognise that Hamberger SDP determined, inter alia, two contentious issues in the 2012 Decision:

1. The appropriate method of random drug testing should be through oral swab testing; and

2. The blood alcohol concentration cut-off level for all employees should be 0.05mg/100ml, except for those employees engaged in high-risk activities whose cut-off level should be 0.02mg/100ml.

The central focus in the present case was on two main matters objected to by the Unions and sought by Endeavour as to the efficacy of:

1. a 0.0mg/100ml blood alcohol concentration for all employees; and

2. the introduction of random urine testing for drug detection on a 50/50 selection basis with oral swab testing.

[6] The Unions’ case may be summarised as follows:

(a) the proposed change is inconsistent with the prior arbitration;

(b) the proposed change includes unreasonable directions in the course of work;

(c) the applicant has not engaged in an ‘interest based’ approach to consultation; and

(d) the applicant has not given genuine consideration to alternative proposals put to it by the Consultative Committee (the ‘EECC’).

[7] In accordance with my usual practice, I listed the dispute for conciliation on 5 June 2019. As no agreement could be reached on the terms of the new procedure, I issued directions to the parties and set the matter for hearing on the estimate of five days.

[8] At the hearing, Mr Y Shariff of Counsel appeared with Mr T Sebbens and Ms J Woodroffe (of Ashurst, instructed by Endeavour), and Mr M Gibian of Senior Counsel appeared with Mr A Jacka and Mr D Austin for the CEPU on behalf of the Unions. Permission was granted for the parties to be legally represented, pursuant to s 596 of the Act. Given the complex, specialised and technical nature of the issues to be grappled with in this matter, I am indebted to both Counsel for their thorough preparation, efficient and effective conduct of the proceedings, and their helpful presentation and explanation of the detailed material necessary for me to reach appropriate outcomes in this case.

THE EVIDENCE

[9] The following lay persons provided statements and oral evidence in the proceedings:

•  Mr Andrew Pitman, General Manager Safety Human Resources and Environment at Endeavour;

•  Ms Janet Ann Drakos, Manager Health Services Injury Management at Endeavour;

•  Mr Bradley Currey, Organiser at the CEPU;

•  Mr Noel Mahon, Testing Technology at Endeavour and Workplace Union Delegate for the CEPU; and

•  Ms Ellen McNally, Faults and Emergency Operator at Endeavour Energy and Workplace Union Delegate for the CEPU.

Annexures

Annexed to this decision as Annexure ‘A’ is a glossary of terms and definitions referred to throughout this Decision and helpfully extracted from the ANZS 4760:2019. Also, for ease of reference, I annex the existing AODP and the proposed AODP as Annexures ‘B’ & ‘C’ respectively.

Statement of Mr Andrew Pitman

[10] As General Manager, Safety Human Resources and Environment since July 2015, Mr Pitman is responsible for health, safety, environmental strategy, management systems and business support. He reports to the Interim CEO, Ms Leanne Pickering.

[11] It was Mr Pitman’s evidence that since the change in the ownership structure in 2017, and the appointment of a new Board, including a Health, Safety and Environment subcommittee, there has been a greater focus on safety and ensuring that risk is better understood and controlled. Mr Pitman said that 80% of employees regularly undertake high-risk work, including:

•  high and low voltage live line work;

•  working on or near the electrical network;

•  operating heavy vehicles;

•  working on or near road or railways in active use;

•  working at heights of more than two metres;

•  working in confined spaces ;

•  working remotely or alone; and

•  using mobile plant and equipment.

[12] Workers performing such high-risk work places a potential risk of harm to themselves, other workers, customers and the general public. The work requires judgement and decision making. Mr Pitman said that while there are other employees in roles not categorised as high-risk, they also make critical decisions which impact on the safety of others, such as engineers and contact centre employees who maintain data regarding some 20,000 life support customers. Mr Pitman also observed that most of Endeavour’s employees travel to work locations by motor vehicle, sometimes at many different locations in a day. Mr Pitman understood that a common feature of safety incidents involves human factors, including reverse polarity or traffic/vehicle accidents.

[13] Mr Pitman noted that Endeavour has statutory responsibilities under the Work Health and Safety Act 2011 (NSW) to ensure, as far as reasonably practicable, the health and safety of its employees. To this end, Endeavour Energy’s Board Policy 3.0 Work Health and Safety sets out its key responsibilities to be:

(a) overseeing the implementation and effectiveness of the Health and Safety Management System (‘H&SMS’);

(b) reviewing the appropriateness of Work Health and Safety (‘WHS’) risk management and risk monitoring processes and programs as they are developed, implemented and maintained; and

(c) establishing a H&SMS to facilitate compliance with relevant laws and regulations and continuous improvement in the performance of its WHS responsibilities.

[14] Mr Pitman is responsible to the CEO and the Board to ensure the H&SMS is maintained and adequately addresses the risks faced by employees. The Network Fatal Risks Standard identifies fitness to work as requiring a policy which clearly defines maximum levels of drug use and alcohol in employees’ systems, who work on or near the electrical network. This policy is set out in Company Policy 3.0 – Fit for Work. The AODP is a critical control measure in managing fitness for work.

[15] The AODP was first introduced in March 2013 and rolled over for a further (three year) period on 20 March 2018. Mr Pitman said that around April 2018, Ms Janet Drakos, Manager Health Services Injury Management, conducted a review of the 2018 Procedure. After discussions between himself and Ms Drakos, Mr Pitman considered the 2018 Procedure did not adequately address the risks associated with alcohol and drugs in the workplace. This was based on his belief that the business had changed substantially since 2013. Mr Pitman also informed himself of the developments in workplace drug and alcohol testing and other procedures adopted in similar high-risk industries. Ms Drakos’ review had determined that the uniform Blood Alcohol Concentration (‘BAC’) should be 0.00% for all workers across the business, with a ‘blended’ methodology for drug testing; see [5] above, needed to be adopted for the purposes of deterrence and reducing the safety risks posed by workers impaired by drugs or alcohol. Approval was given by the Board’s Subcommittee for consultation to commence with the Endeavour Energy Consultation Committee (‘EECC’) in accordance with the Agreement. An interest-based consultation process commenced with the Union respondents in September 2018 and Mr Pitman was updated of progress by Ms Drakos. A briefing paper dated 12 February 2019, was prepared by Ms Drakos which encompassed the changes as originally proposed.

[16] Mr Pitman approved Ms Drakos’ recommendations subject to further consultation and feedback from all employees, the Health & Safety Committee and the EECC. On 15 February 2019, all employees were informed of the proposed changes and invited to provide feedback over the ensuing month. On 16 April 2019, having briefed the Executive Leadership Team on 8 April 2019, Mr Pitman endorsed Ms Drakos’ proposals for change as set out in Annexure C. He had considered all of the feedback and incorporated some suggested changes where possible.

[17] Mr Pitman claimed the factors he considered when approving a BAC of 0.00% as:

(a) a 0.00% BAC would eliminate the risk of possible impairment by alcohol;

(b) a 0.00% BAC limit would act as a greater deterrent;

(c) a 0.00% BAC limit is reflective of current high-risk industry standards;

(d) under the 2018 Procedure, different BAC limits apply to different Endeavour businesses, and the introduction of a 0.00% BAC limit provides for uniformity across the business;

(e) a 0.00% BAC limit would further remove any inconsistency with job role assessment and increase Endeavour’s productivity by removing the need to assess each job role and risk level;

(f) a uniform BAC limit reduces the potential confusion amongst workers as to which limit applies to whom; and

(g) adopting a zero BAC for detection would promote a consistent approach, and addresses concerns raised by field staff about the different detection levels adopted in the 2018 Procedure, which reinforced a ‘us vs them’ mentality between the office and field staff. It would also effectively eliminate the risk of any impairment of all employees due to alcohol, including employees who may transition between field and office roles.

[18] In respect to the ‘blended’ approach for drug testing, Mr Pitman had considered:

(a) adopting a blended methodology for random drug testing (rather than introducing a drug testing methodology that was completely urine based) is a reconciliation of Endeavour’s interests and the EECC’s interests (reflecting employees and their Unions’ interests);

(b) the approach would bring Endeavour further into line with the approach to alcohol and other drugs testing procedures adopted by employers in similar high-risk industries;

(c) random blended methodology testing would provide an effective deterrent to employees to engage in ‘at risk’ behaviour and the potential for employees being impaired or otherwise affected by alcohol or other drugs at work, including by ensuring that employees do not know which method of testing they will be subject to, providing a more comprehensive deterrence for a broader range of drugs, and making it more difficult for those workers who may attempt to thwart the testing process;

(d) adopting urine testing, as part of the random testing process, and also being used for other types of testing (as noted), was appropriate, having regard to the following:

(i) detection through urine testing can be an indication of misuse and dependency, which can affect long term impairment and fitness for work (including a worker’s risk perception and situational awareness);

(ii) urine testing can detect a wider range of drugs and therefore provides a better deterrent to a wider range of drugs;

(iii) urine testing offers reasonably accurate onsite assessment;

(iv) urine testing would reduce the distressing impact on employees of unnecessary stand-downs due to false non-negative results; and

(v) urine testing would increase productivity and reduce the negative impact on employee morale as the need for managers to manage non-negatives and unnecessary stand down of employees will be reduced.

[19] Mr Pitman believed oral fluid testing had the following shortcomings:

(a) oral fluid technology does not cater for the detection of a number of drugs (or their active ingredients including ecstasy, amphetamine, benzodiazepines, heroin and some opioid pain medications;

(b) cannabis can be difficult to detect in oral fluid testing and has a short detection period, meaning the risk of impairment due to chronic use or hangover is not detected;

(c) it produces a reasonable number of false non-negative results which have emotional and productivity impacts; and

(d) urine testing is better at assisting Endeavour to manage the risks associated with chronic and hangover use, due to the longer detection windows.

[20] On 29 April 2019, Mr Pitman sent a company-wide email to all employees about the consultation process addressing two key concerns and identifying the major elements of the procedure. The email reads, inter alia:

•  ‘Privacy: If you need to provide a urine sample, you would not be directly observed. The testing collectors are trained to be sensitive to people’s individual situations and would do everything they could to make you feel comfortable and respect your privacy and dignity.

•  Storm response: Given there are higher risks in responding to storms, we consider that a BAC of 0.000 is appropriate and we are confident we can continue to manage our storm response without significantly impacting our customer response times.

We’ve carefully considered all feedback from employees, unions and the Health and Safety Committees. In light of our interests and the feedback, the key elements of the proposed procedure, if adopted, will be:

•  A 0.000% Breath Alcohol Concentration for all workers

•  A blended model for random drug testing (50% oral fluid, 50% urine)

•  Onsite urine testing for return to work, post incident, for cause/suspicion and target testing

•  Laboratory confirmation tests for all random urine tests and non-negative oral fluid tests

•  Screening of all workers reasonably connected to the work at the time of a health and safety incident.’

Statement of Ms Janet Drakos

[21] Ms Drakos has been Manager, Health Services Injury Management since 2013 and reports to Mr Pitman. In her role, Ms Drakos makes recommendations for reform to current policies in injury management, rehabilitation, workplace health and wellbeing management systems. Ms Drakos referred to Endeavour’s Health Management System, the Work Health and Safety Policy and the Fit for Work Policy which includes ensuring appropriate measures to manage fatigue, work capacity and alcohol and drugs which may influence a worker’s fitness for work.

[22] Ms Drakos said that the current AODP was introduced in 2013 and rolled over on 20 March 2018 with little material change. Since 2013, over 4,500 random tests have been conducted using two designated selection methods: the marble method and the ‘Ablebits’ randomiser method. By reference to the test results over the last four years, the decrease in employee numbers, the percentage of tests per number of employees were constant and confirmed positives have remained static, Ms Drakos claimed that the current system is not working as an effective deterrent to risk taking behaviour.

[23] Ms Drakos identified two events since 2013 in which post incident testing was conducted; one had a positive result for cannabis and the other had a negative alcohol result. Ms Drakos believed that post incident testing has not occurred as frequently as Endeavour would prefer. It was proposed that a new education and awareness campaign would be conducted in consultation with all parties.

[24] Ms Drakos believed that a number of issues, including deficiencies have arisen in respect to the 2013 AODP namely:

(a) Employees have complained about false non-negative results from oral fluid test kits, in confirmed negative results, after laboratory testing. In 2019, there were 19 false non-negatives which impacted workers psychologically and emotionally, as well as impacted on Endeavour’s productivity and operations.

(b) The different testing levels for BAC for ‘high-risk’ and other employees, has been a point of contention for field-based employees. The fact that a different standard is applied (namely a 0.02% BAC level for high-risk workers, and a 0.05% BAC level for others) reinforces a ‘them and us’ perception in the field. The distinction also raises some practical issues given that office-based staff also have access to Endeavour vehicles and may also need to attend to storm events.

(c) Oral fluid drug testing devices for onsite screen testing are only required to be ‘fit for purpose’, as compared to being subject to accreditation to a particular standard, like urine drug testing devices. This raises concerns about the reliability and accuracy of such devices.

(d) Ms Drakos understood that the number of drugs capable of being detected by such oral fluid devices is also fewer than for urine testing devices. Each of these matters is concerning, given the importance placed on safety, and the detection of employees who may be impaired or engaged in risky use.

(e) There had been a number of disputes concerning the application of the procedure, including in 2013 when employees who were members of the Electrical Trades Union (‘ETU’) (a branch of the CEPU) refused to participate in testing. There were also two disputes with the employees described below:

(i) in 2014, an employee refused to take a drug test; and separately

(ii) also in 2014, an employee refused to take a test requested by the Medical Review Officer (‘MRO’) to be used as a diagnostic test to support medical diagnosis and future treatment.

(f) Ms Drakos also understood that more recently in 2018, employees working on a worksite of another company had indicated that they would refuse to participate in urine screening if selected, despite it being a health and safety requirement of that company’s worksite. However, the Endeavour workers were not selected for drug testing at that time.

(g) Ms Drakos raised concerns that the 2018 Procedure in its current form is limiting qualified medical practitioners from appropriately identifying, diagnosing and recommending treatment to support drug related medical conditions.

[25] As a result, Ms Drakos conducted a review of the 2013 Procedure over three months from April to July 2018. Ms Drakos took into account a number of legislative and other changes affecting Endeavour’s business and the current environment. These were earlier identified by Mr Pitman and included an alliance formed between Endeavour and UGL Limited (‘UGL’) which meant three different BAC cut-off levels; 0.02% and 0.05% for Endeavour employees, and 0.00% for UGL employees where UGL and Endeavour employees are working alongside each other. Ms Drakos said the risks to Endeavour include the following:

(a) Endeavour Energy was formerly part of Networks NSW, a NSW Government entity together with Essential Energy and Ausgrid. Networks NSW was disbanded in June 2017. At that time, the poles and wires assets within the Endeavour franchise area were leased to a consortium. As a result, the employees within the Endeavour business became employed by Endeavour Energy Network Management Pty Ltd. A new Board of Directors was also established for the business.

(b) Endeavour established a ‘ring fenced business’ called Ausconnex Management Pty Limited (‘Ausconnex’) which competes for unregulated work in the electrical contracting market. Ausconnex operates in the unregulated market undertaking a variety of electrical contracting work, such as asset relocations and supplying network equipment.

(c) Ausconnex has seconded to it employees of Endeavour Energy. These employees of Endeavour, when working within the Ausconnex business, work on worksites of other persons conducting a business or undertaking (‘PCBU’), and are required to comply with the health and safety arrangements applicable to that worksite, with some of these businesses being required to comply with the Code for Tendering and Performance of Building Work 2016 (the ‘Building Code’) which provides for a ‘zero tolerance’ level for drugs subject to detectable levels. Ausconnex is competing for non-regulated work against a number of the companies and as WHS standards are a critical selection criterion, it is imperative that Endeavour is able to meet the standards of its competitors.

[26] Ms Drakos believed that the current methodology requiring a minimum of two days and an employee’s stand down to confirm a non-negative result, adversely impacts on an employee’s psychological state and Endeavour’s productivity when employees are stood down. Ms Drakos had serious concerns as to the impairment by drugs or alcohol on affected employees and their ability to perform high-risk tasks safely. As part of her review, Ms Drakos undertook a benchmarking exercise in a range of high-risk industries. She believed her inquires reveal other high-risk companies had adopted more stringent BAC and drug testing standards. Ms Drakos and Mr Pitman had agreed on her review and recommendations and then embarked on an interest-based consultation with the relevant Unions and the EECC. Mr Drakos said Endeavour’s key interests were:

(i) ‘Ensuring that all employees get home safely and perform at their best every day. For any alcohol and other drugs procedure that is in place, this means we want to ensure that it is an appropriate measure for Endeavour Energy to meet its obligations under the WHS Act in terms for eliminating or controlling the risk of alcohol and other drugs use by workers as far as reasonably practicable;

(ii) Eliminating the impact that unnecessary non-negative stand downs can have on a worker’s mental health, as well as on productivity through lost time;

(iii) Responding to changes in the high-risk environment in which Endeavour Energy works, that any alcohol and other drugs procedure that is in place treats everyone the same so as to eliminate the confusion around the different levels that apply in different situations;

(iv) Focusing on supportive health outcomes and care for Endeavour Energy’s employees; and

(v) Any alcohol and other drugs procedure that is in place to be in plain-English and easy to understand and apply’.

Meetings and presentations took place on 4 September, 20 September, 27 September, 11 October, 25 October and 11 November 2018.

[27] Ms Drakos then set out the consultation process with feedback sought from employees after she had provided her recommendation to Mr Pitman and his email to all staff on 15 February 2019; see: [16] above. The consultation period from 15 February to 15 March 2019 included:

•  80 email responses from employees;

•  A FAQ document; and

•  19 consultation meetings with local health and safety committees throughout NSW and them updating the FAQ document.

Ms Drakos recommended to Mr Pitman for a new AODP on 16 April 2019, which included a common 0.00% BAC limit and a ‘blended’ oral and urine testing regime for drugs.

[28] Ms Drakos said that from the feedback the following was proposed as to how the procedure would be implemented:

(a) continuing to adopt a supportive approach which aims to help workers ensure that they are fit and healthy to perform their job, and provides them with additional support where appropriate to do that;

(b) confirming that where an employee is required to provide a urine sample they will not be observed providing that sample;

(c) agreeing to increase the onsite testing;

(d) committing to increased post incident testing;

(e) modifying the non-negative notification form to ensure there is post testing follow up with the worker from their preferred point of contact (health services or their manager) and providing additional information for further advice, assistance and information for workers in relation to alcohol or drug issues they may be experiencing;

(f) providing for alcohol self-testing during a transition period;

(g) confirming that Endeavour would roll out further alcohol and drug awareness and training sessions for staff prior to the implementation of the proposed AODP;

(h) providing further clarification on the proposed AODP around the process that applies where an employee is on prescription or over the counter medication;

(i) confirming that all urine samples will be sent to a National Association of Testing Authorities (‘NATA’) accredited laboratory for synthetic drug screening after concerns were raised that only sending non-negatives would be limiting; and

(j) confirming that the testing collectors are trained to be sensitive to an individual’s particular situation and will do everything they can to make the person feel comfortable and manage the situation with respect to the persons’ dignity and privacy.

Ms Drakos referred to Mr Pitman’s all staff email of 29 April 2019 which dealt with the policies key features and addressed three specific employee concerns – see: Mr Pitman’s email at [20] above.

Statement of Mr Bradley Currey

[29] Mr Currey has been involved with industrial matters at the Company for the last 11 years, including negotiations for the Endeavour agreements, and more recently in discussions concerning the AODP with other Unions and delegates. Mr Currey set out the discussions for the proposed AODP which began on 14 August 2018 and which Endeavour sought to have conducted using ‘interest based’ bargaining. At a meeting on 4 September 2018, Ms Murison stated that Endeavour’s reasons for a review of the AODP were concerns in relation to:

(a) the number of false positives;

(b) the degradation of samples during transportation to the laboratory leading to false positives;

(c) the three-day stand down period from the time an employee has a non-negative random test result;

(d) the impact on productivity during these three days;

(e) costs; and

(f) the emotional wellbeing of Endeavour’s employees during this three-day period while stood down pending the laboratory confirmation result.

At this meeting Mr Currey asked if Endeavour wanted to utilise urine testing, and was told ‘no’.

[30] At another meeting on 20 September 2018, Ms Drakos responded to requests for certain information from the data over the past years. She had provided:

(a) A breakdown of that data in relation to the total number of confirmed positive results. There were 25 confirmed positive results out of 2329 tests.

(b) A breakdown of how many of the confirmed BAC and drugs from those total results. Ms Drakos said the BAC was 8 and drugs was 17.

(c) The breakup of confirmed positives of contractors and Endeavour staff.

(d) There were 67 false positives out of the 2329 number of tests carried out. There were 38 employees stood down, 13 employees put on suitable duties and 16 employees were deemed fit for work.

The meeting also discussed a non-controversial proposal to redraft the procedure in ‘plain English’ and a new section about the use of synthetic drugs. Mr Currey again asked about urine testing and Ms Murison said this was not the reason for the review.

[31] Further meetings were held involving Endeavour’s testing agent, The Drug Detection Agency (‘TDDA’). Concerns about transporting tests to the laboratory were addressed by confirmatory tests conducted in Sydney (one to one and a half days) rather than Melbourne with a turnaround of three days. In a meeting on 11 October 2018, Mr Currey expressed the view that the data for the last four years did not establish a problem resulting in the procedure not working. Mr Currey said it was not until another meeting on 25 October 2019 that Ms Murison confirmed that the Company wanted to introduce partial, not full, urine testing, with maybe a small percentage by urine.

[32] Mr Currey believed that Endeavour changed its concerns and interests to suit their own agenda and disregarded the views advocated by employees and Unions. At another meeting on 11 November 2018, the Unions proposed:

(a) maintaining the current mode of random drug testing (swab) and BAC levels;

(b) running a re-education program of the procedure to all staff so there would be no confusion of the BAC levels if the employee is working in a high-risk position (0.02%) or low-risk position (0.05%);

(c) increasing the frequency of the random testing by conducting the test out in the field onsite, not just in the depots;

(d) conducting mandatory testing for drugs and alcohol of all employees on the site where an incident/accident occurred, including contractors;

(e) improving treatment/follow-up of an employee who returns a ‘non-negative’ and is stood down awaiting the results of the laboratory confirmation results;

(f) having the samples sent to a laboratory that can do the 48-hour turnaround on confirmation of sample (as suggested by TDDA); and

(g) introducing urine testing post a confirmed positive laboratory result as a part of the fitness for work/return to work and pursuing urine target testing thereafter.

[33] At a meeting on 14 February 2019, Endeavour rejected the Unions’ proposals and Ms Murison said they would be proceeding with a new procedure which included:

(a) 0.00% BAC for all employees;

(b) 50% of random tests being urine tests;

(c) all urine samples would be sent to the laboratory for synthetic drug testing;

(d) 50% of random tests being swab testing; and

(e) if a ‘non-negative’ result occurred from an onsite random swab test, then a urine test would be undertaken and tested.

[34] Where urine testing for synthetic drugs had a five-day turnaround, Ms Drakos said that in these circumstances, an employee would not be stood down. Mr Currey said that as a result, the Unions advised they would be activating the DSP in the Agreement for a breach of the consultation process. Various emails were exchanged between the parties in February/March 2019 and the Unions proposed a joint application to the Commission for a ‘New Approaches’ process, pursuant to s 576(2)(aa) of the Act. Endeavour responded and claimed such a course was premature as consultation was continuing and no decision had been made.

[35] The parties remained in dispute. Another meeting was held on 9 March 2019, in which Endeavour outlined the consultation procedure and its methodology for arriving at its position on the review. The Unions rejected the position as ‘unreasonable’, ‘unjustifiable’ and ‘without evidence’. Mr Currey said that between May and June 2019 (noting that the first Commission conference was held on 5 June 2019) he had a number of conversations with Ms Murison and suggested alternate outcomes, including:

(a) making the BAC level 0.02% for all staff, not just staff identified as working in high-risk position. That way it would be a uniform limit for all staff;

(b) urine testing post a confirmed positive oral swab laboratory result as part of the fitness for work/return to work;

(c) if the employee provides a negative urine sample, urine target testing for a period after the employee returns to work; and

(d) urine testing for pre-employment testing.

These proposals were all rejected by Endeavour.

[36] Mr Currey rejected Ms Drakos’ argument as to changes in the workplace. There has been no material change to the work performed by employees; no changes in relation to safety, safe work procedures, how the network is repaired and maintained in accordance with obligations on all staff. Mr Currey said that Endeavour employees have always worked with contractors and on worksites of other businesses. Employees are well-aware of their health and safety obligations when working on any site.

[37] Mr Currey referred to the outcome of the 2012 case and the enquiry by Mr T Love, Federal Safety Commissioner in May 2013 to identify and determine high and low-risk roles (the ‘Love Report’). As a result, 700 employees are defined as high-risk and have 0.02% BAC level applied. Such work includes:

•  all electrical tasks and work, including testing and isolation;

•  all field/site work;

•  all switch yards and switch rooms;

•  all workshop areas;

•  all stores;

•  operation of all heavy vehicles; and

•  workers authorising and/or actuating isolations in a remote location (i.e. control rooms).

Mr Currey described the difficulties of having a 0.00% BAC for all field staff including those on standby and how Endeavour would ensure senior managers making decisions at short notice, were at 0.00%.

[38] Mr Currey believed that Endeavour has not provided any objective evidence that would warrant a change from random oral testing. There has only been two examples of post incident testing and the three day stand down of employees would not arise if the turnaround time was reduced, as is now proposed. In response to Ms Drakos’ statement, Mr Currey said her claim of 4500 tests since 2013 was inconsistent with what she told the Unions as being 2329 tests. Further:

•  not all field staff commence work at the depot or at the same time, meaning some field staff would be missed;

•  there was no evidence, nor had he been told of employees complaining about false negative results;

•  he had not heard of any complaints from field staff about the differing BAC levels applying to high-risk and low-risk employees. In any event, the Union’s proposal for a 0.02% BAC cut-off would eliminate this alleged concern.

•  Hamberger SDP did not alter his 2012 decision in respect to the performance and accreditation of oral testing in another case filed by Endeavour in late 2013; see: Endeavour Energy [2014] FWC 198.

•  the issues involving Mr Dishburn and Mr Prosser were misrepresented by Ms Drakos;

•  he was not aware of any employee in 2018 working on the worksite of another company refusing to participate in a random urine test;

•  if an employee is directed to provide a urine sample by an Independent Medical Expert this is already provided for in the current AODP;

•  the Unions were not made aware of Ms Drakos’ review conducted in April 2018;

•  there was no evidence of risky drinking or drug taking in regional areas. Such a suggestion was insulting, unsubstantiated and unreasonable;

•  the community statistics are of limited value as they are not reflective of the actual data over the past four years;

•  Ms Drakos’ benchmarking exercise actually reflects consistency between Endeavour’s current AODP and other electrical distribution companies;

•  Endeavour’s approach to interest-based bargaining was inconsistent with Cl 5.2 of the 2017 Agreement and the negotiations for the Agreement facilitated by Cribb C;

•  the Unions were never provided with the 80 emails received from employees as ‘feedback’ on the proposed AODP. The CEPU conducted its own survey which found:

(i) of the employees surveyed, 123 of the employees were field based and 50 were office-based;

(ii) 105 employees surveyed said they were on 0.02% BAC; 41 said they were 0.00% BAC; 14 said they were 0.05% BAC; and 13 employees didn’t know the BAC cut-off; and

(iii) 159 employees do not support the proposed changes.

[39] In response to Mr Pitman’s statements, Mr Currey said:

•  Mr Pitman had not attended any of the consultation meetings;

•  the ‘Love Report’ identified high-risk roles including contractors;

•  there was no evidence of any incident involving ‘human factors’ as being related to alcohol or drug taking;

•  there have been no substantial changes in the business obligations in respect to health and safety;

•  Mr Pitman (and Ms Drakos) were not qualified to draw conclusions about oral fluid testing. Mr Pitman seemed to rely only on conversations with Ms Drakos; and

•  the changes Endeavour proposes were not evidence based and there were no changes which justified or demonstrated the current procedure had failed, or was inadequate.

Statement of Mr Noel Mahon

[40] Mr Mahon commenced employment with Endeavour, or its predecessor entities, as an apprentice electrical/fitter mechanic in 1977. He holds an Electrical Contractors License and an Electrical Supervisors License. In 1995 he completed an Associate Diploma in Electrical Engineering. He has been a workplace union delegate for approximately 20 years and has been on various consultative and OH&S committees and involved in negotiations for the 2012 and 2017 Agreements. Mr Mahon described the numerous licenses he holds and the work he performs as a Testing Technologist.

[41] Mr Mahon, with other delegates and officials, was directly involved in the consultation meetings with management over the proposed AODP. These discussions included Endeavour’s concerns with oral testing having a high number of non-negatives due to sample degrading, minimum stand downs of three days, the effect on productivity and individual personal impacts. Endeavour had said there had been 67 false positives with 38 employees stood down. Mr Mahon had raised a personal concern that he had been required to provide three samples, without an explanation. He had also raised privacy concerns (My Health Record) and identity theft with the storage of medical records. Mr Mahon recalled each of the meetings when TDDA attended and discussed emerging drug use trends. TDDA had stated that it was difficult to test for benzodiazepines. There was a discussion about sample transportation concerns (three days to Melbourne) and degradation issues. It was understood a 24-hour turnaround would apply if samples were sent to a Sydney laboratory.

[42] At the meeting of 11 October 2018, the employees’ interests were set out as:

(a) Testing for risk of impairment not lifestyle choices.

(b) Preventative/Supportive approach rather than punitive.

(c) Ensuring the procedure/limits are well understood e.g. BAC levels.

(d) Maintaining employee’s dignity and respect – preventing humiliation.

(e) Preserving employee confidentiality regarding health record and testing records.

(f) More onsite testing than depot-based – more of a deterrent.

(g) Interest in self-testing for alcohol.

(h) Interest in having some flexibility with the AODP.

(i) Education around levels and application – particularly if a different site and levels that will apply.

(j) Clarity/information around medication including cold and flu tablets – flagging risks.

[43] Mr Mahon believed the Company then shifted its focus to synthetic and designer drugs. The 11 November 2018 meeting discussed the impact on standby employees of a 0.00% BAC, who would have to rule themselves out of a call out, if they had one drink. Mr Mahon believed that in these circumstances Endeavour might not have enough people to provide an adequate response during storm events. Mr Currey had mentioned the immediate impairment effect from oral testing, the turnaround time being reduced and if there was a problem, Endeavour could increase the frequency of testing.

[44] Mr Mahon described the meetings in early 2019 where Endeavour set out its position and the Unions responded that the existing procedures adequately address and control the risks of alcohol and drugs in the workplace. In Mr Mahon’s experience, if anything was to be improved, it was the level and extent of targeted testing.

[45] Mr Mahon addressed Ms Drakos’ statement by commenting that her claim the procedure was not working effectively was not supported by the evidence, or can be otherwise addressed; for example, the sample turnaround can be shortened; no work has been impacted on by stand-downs; the other electrical supply companies have similar AODPs to Endeavour making widespread coordination in natural disasters easier; and the energy distributors are exempt from the Building Code.

[46] Mr Mahon disputed Ms Drakos distinguishing immediate impairment from longitudinal assessment of fitness for work. They are two different things and must be separated. One involves testing while the other concerns an employees’ general physical and mental health. Linking them under the guise of safety should be viewed with scepticism. Mr Mahon criticised Endeavour for not following the steps in an ‘interest based’ bargaining process and for failing to provide timely information. The Unions had not been provided with the ~80 feedback emails from employees and Mr Mahon described the presentation meetings in various locations as poorly conducted, providing little opportunity for discussion and questions.

[47] Mr Mahon noted that the BAC road traffic cut-offs were 0.02% for heavy vehicles and passenger vehicles and 0.05% for personal vehicles. These are in line with the current BAC levels at Endeavour and other power utilities. Mr Mahon further believed that:

•  the new oral fluid testing standard AS4760-2019 has an expanded range of testing for impairment and gives an almost instantaneous result;

•  Endeavour employees prefer oral fluid testing for convenience and the avoidance of embarrassment;

•  existing deterrents are adequate with random, causal, suspicion and post-incident testing; and

•  the buffer solution will address sample transport degradation.

[48] Mr Mahon said that he could not recall Mr Pitman attending any of the consultation meetings. He said Mr Pitman’s views about deterrence is a demonstration that the existing AODP is working. Mr Mahon criticised Mr Pitman’s reliance on a so called ‘interest based’ bargaining process for the same reasons as he criticised Ms Drakos’ claims for the reasons for the proposed changes. Mr Mahon repeated his earlier comments in respect to Mr Pitman’s statement. He noted that he was not aware of any ‘them and us’ mentality between field and office staff with different BAC cut-off levels.

Statement of Ms Ellen McNally

[49] Ms McNally is a 24 hour/7-day shift worker whose role is to deal with phone and internet inquiries from all external customers, including the public and retailers. She has worked for Endeavour (and Integral) since 2002. She is a CEPU delegate and member of the EECC. In July 2019, she was elected to the CEPU NSW Executive. She attended all of the meetings with management between 4 September 2018 and 4 April 2019 in respect to the proposed AODP.

[50] Ms McNally responded to Ms Drakos’ statement as follows:

(a) There has been little post incident testing since 2013. This is the Company’s choice. As the person responsible for reports of near misses or incidents, including vehicle collisions, in the last two years, she had not seen ‘yes’ to a question about BAC testing, even when managers have witnessed vehicle incidents. She and other delegates support more post incident testing, as it may lead to greater awareness and deterrence.

(b) As to impacts on workers of being stood down, she gave an example of a member who was stood down for a non-negative result related to anti-depression medication who had not been contacted or followed up by the Company while stood down. It is the Company’s choice to have a 3-day turnaround for confirmatory testing, and in meetings involving the TDDA, it was confirmed that a 24-hour turnaround was possible in Sydney, rather than sending samples to Melbourne.

(c) The Unions had proposed a 0.02% BAC cut-off for all employees to counter the alleged ‘them and us’ mentality. Endeavour had rejected the suggestion. Ms McNally is concerned that 0.00% BAC for all employees will result in employees being overloaded with work, when major incidents require call outs and employees will be unavailable if they fear being detected for any trace of alcohol.

(d) Oral testing devices are subject to minimum Australian standards and are therefore not only required to be ‘fit for purpose’.

(e) She was unaware of any employee who had refused urine testing at a non-Endeavour location, such as performing work in rail corridors.

(f) She was concerned that an employee’s private medical records may not be secure, and employees may not wish the Company knowing about medications used for certain conditions. It is an unreasonable intrusion into an employee’s private life.

(g) Ms Drakos seemed more concerned that not enough employees were being caught by testing processes, rather than the testing being inadequate. The Unions had suggested random testing of drugs and alcohol at depots. This was rejected by Endeavour.

(h) She said that there has been little change in the business since 2013. The role of the business and the work performed by staff has not changed with the change in business ownership; the demographics of the staff has not changed; contractors have always been used and network boundaries have not altered.

(i) The ‘interest based’ consultation (more ‘roadshows’ than consultation) had commenced after the proposed changes had been put to the management and the Board. There was little difference from the first proposal in April 2018 to the final proposal in April 2019, save for minor tweaking. Further, she felt the Company’s interests were constantly changing. For example, despite initially denying a plan to introduce a zero BAC level and urine testing, both of these matters were a major feature of the proposal.

(j) It was never made clear how Ms Drakos and Mr Pitman came to the view that the existing AODP was not adequately addressing risks associated with alcohol and drugs in the workplace.

[51] As to Mr Pitman’s statement, Ms McNally said to her knowledge, he had never attended any of the meetings to discuss the AODP and had not attended any EECC meetings to review the procedure.

[52] Ms McNally referred to the Union’s survey of members and believed it highlighted how employees feel about the proposal and their perception of the lack of consultation by the Company. Ms McNally had also spoken to many female employees who had expressed specific concerns as to urine testing.

[53] Ms McNally used her own example of never having been randomly tested for alcohol or drugs since commencing employment in 2002, to demonstrate Endeavour is not adequately applying the AODP.

EVIDENCE IN REPLY

Reply Statement of Andrew Pitman

[54] In his reply statement, Mr Pitman responded to the Union’s case that the activities of Endeavour have remained unchanged since 2013. He claimed that there has been a ‘lift in focus on safety’ under the Company’s new Board and Management structure, particularly in respect to changed expectations of risk management.

[55] Mr Pitman responded to Mr Currey’s statement concerning the Building Code and emphasised that while exempt, Endeavour (and Ausconnex) employees are still required to work with building industry companies and contractors where the Building Code applies, and comply with their onsite alcohol and other drugs procedures. As a result of Mr Currey’s criticism for not providing copies of Incident Cause Analysis Method (‘ICAM’) investigations in respect to ‘human factors’ relating to alcohol and drugs, Mr Pitman offered the following:

(a) ‘Approximately 50% are classified as “FR1.1 Exposure to unintended discharge of electricity”; and

(b) 30% are classified as “FR1.4 inadvertent contact with plant and vehicles”.

(c) 85% of these incidents had at least one contributing factor related to “individual/team actions”’

Mr Pitman claimed that ‘human factors’ (Individual/Team actions) may involve behavioural influences such as fatigue, stress, or effects of alcohol or drugs. Reducing these risks will also serve as a deterrent when addressing potential future incidents.

[56] In respect to criticisms of Ms Drakos’ benchmarking exercise against other energy providers and high-risk industries, the table shows that electricity distribution is becoming increasingly less aligned with the standards in other high-risk industries. He also understood that Essential Energy is soon to introduce a BAC cut-off of 0.00% and onsite urine testing as an option for follow up, post incident and cause testing.

[57] Mr Pitman also stressed that the fact that alcohol and drugs have been detected in the workforce is not indicative of the optimal functioning of the current AODP, particularly as some drugs are not currently detectable and a ‘blended’ approach would enhance the deterrent effect and reduce the risk of impairment.

[58] In response to Ms McNally’s concerns about employees not coming to work if a level above 0.00% BAC may result in dismissal, Mr Pitman pointed out that a breach of the AODP will be considered on a ‘case by case’ basis and will not automatically result in dismissal. Mr Pitman said that working in rail corridors is not confined. Work in these areas is not voluntary or optional.

Reply statement of Ms Drakos

[59] In a reply statement, Ms Drakos disputed Mr Currey’s evidence that in the meeting on 4 September 2018, when he asked if Endeavour was planning to introduce urine testing, the answer was no. She recalled Ms Murison had said there were areas for improvement and Endeavour was ‘exploring all possible options, combinations and types of testing that are available, including urine testing’.

[60] Ms Drakos said that synthetic drugs was discussed at the EECC on 20 September 2018 where it was agreed that TDDA would give a presentation about workplace drug testing programs. At the subsequent meeting, synthetic drugs and some of the limitations with testing methods for these drugs, was discussed at length. A table on the subject was requested and emailed to the Unions and delegates on 7 November 2018. It was advised that urine testing was being considered from an increased deterrence perspective because oral testing did not detect a broad range of drugs.

[61] As to the discussion around turnaround times for results, TDDA commenced using an accredited Sydney laboratory in May 2019. However, it is unable to screen for benzodiazepines. This means non-negative samples for benzodiazepines are required to be sent to Melbourne or Brisbane for testing. Even so, Ms Drakos had reviewed the turnaround times for eight non-negative results sent to a Sydney laboratory: two were greater than three days, three were three days and three were less than three days. This proved shorter turnaround times in Sydney were ‘not assured’.

[62] Ms Drakos said that Mr Currey was incorrect when he stated that approximately 700 employees were in high-risk positions. The Love Report disclosed approximately 1100 employees (or 80% of staff) were designated high-risk. Ms Drakos also denied that random testing is only ever conducted at depots. Infield testing does occur and of those conducted infield in the past few years, the following percentages of overall results were identified:

•  2016 – 13.8%

•  2017 – 18%

•  2018 – 29%

•  2019 – 27.4%

[63] Ms Drakos claimed that in her role she was aware of a number of individuals who made complaints about the effect on them of false non-negative results. Four confidential examples (1 in 2018 and 3 in 2019) were cited. Ms Drakos also claimed to be aware from refresher training and safety sessions, that field staff have raised concerns with her as the differences in BAC cut-off levels, have sought the same BAC levels and raised an ‘us vs them’ mentality. Ms Drakos also claimed she had been informed that a workgroup at Narellan had indicated they may refuse to participate in urine testing.

[64] In response to Mr Mahon’s statement, Ms Drakos said that the cut-off levels in the new oral fluid standard are unlikely to be able to be verified for a few years given the current testing device technology. Waiting for such devices would cause an undue delay in implementing an appropriate AODP. Ms Drakos explained that Endeavour’s concerns about degradation of samples, was not about the buffer solution, but that a different oral sample is used onsite from that sent for confirmatory testing.

[65] Ms Drakos added that employees are entitled to have a representative with them when they undertake an onsite test and any discussions which may follow. Employees are not interviewed when they return a non-negative result. A worker may be referred to the MRO to determine fitness for work. These discussions are private and confidential.

[66] Ms Drakos said that Endeavour regards pre-employment testing as an ineffective deterrent because the prospective employee is aware they will be tested and when it will occur. Further, given the average service of Endeavour employees is 15.5 years, pre-employment screening is not reflective of future alcohol or drug use.

[67] As to privacy concerns with medical records, Ms Drakos observed that:

•  Endeavour and TDDA are bound by the Privacy Act 1988 (the ‘Privacy Act’) and their own internal processes for the management of personal information;

•  all personal medical information is managed in a secure case management system only accessible by Health Services staff;

•  MRO information is managed and stored by the MRO in accordance with the Privacy Act; and

•  Endeavour is only privy to fitness for work information and treatment recommendations.

[68] Ms Drakos said that where there was low attendance at local Health and Safety Committee meetings, she had asked for further liaison, consultation and feedback.

[69] In response to Ms McNally’s statement, Ms Drakos reiterated the primary objective of the proposed AODP and that by utilising both testing methods, the deterrent factor would be enhanced, as there is a greater range of drugs able to be detected. She said that post-incident testing was reactive, rather than preventative (random testing) and suspicion testing was problematic as workers were reluctant to challenge co-workers unless they are certain. In six years, there had only been two such cases. Ms Drakos disputed Ms McNally’s claim that the oral fluid testing devices used by TDDA exceed the Australian standard. They are verified to the standard by an independent third party. Ms Drakos believed that wastewater testing would be impractical and not specific.

[70] Ms Drakos insisted that ‘interest based’ bargaining had been undertaken by Endeavour. On 11 November 2018, four options were provided for drug onsite testing and three for alcohol testing. The Unions had expressly requested Endeavour’s preferred options and they were indicated and explained.

[71] Ms Drakos rejected McNally’s concerns as to the particular effect on workers of urine testing. She said the testing vans and facilities are accredited and fully equipped to meet the requirements of AS/NZS4308:2008 – the Procedure for collection and detection drugs in urine. These ensure privacy and appropriate disposal facilities, not unlike sample collections at a doctor’s rooms or pathology centre.

Oral evidence

Mr Andrew Pitman

[72] In cross examination, Mr Pitman further detailed his history of working in industrial relations for various electricity supply utilities since 2008, up to and after the partial privatisation of Endeavour in 2017. He referred to the terms of the transfer of employees, which included an employment guarantee up to the end of June 2020 and the continuation of the existing wages and conditions under the relevant Act through a new Enterprise Agreement. He had not been involved in the policy formulation and Commission proceedings between 2012-2014.

[73] Mr Pitman agreed that Endeavour’s desire to change the AODP could have been raised during negotiations for the 2017 Agreement. However, the preferred approach was to deal with the matter outside of enterprise bargaining. Mr Pitman accepted Mr Currey’s evidence that operationally, the activities of employees have remained ‘largely unchanged’ since before the partial privatisation. The ‘substantial changes’ Mr Pitman was referring to related to the business ownership structure and the lift in the focus on safety since then. He also mentioned the introduction of Network Fatal Risk Control Standards (‘NFRCS’) in 2015. He confirmed that most policy or procedure documents set a review date (typically 2-3 years) when they are republished or reviewed. However, changes can occur at any time, depending on changes in priorities, unforeseen incidents or new information comes to light. The Group Health & Safety Policy is approved by the Board while the NFRCS, being a specific subset of the Policy, is approved at CEO level. The current NFRCS recommended by him, was approved in July 2018 with a review in July 2021.

[74] Mr Pitman said the ‘Fitness to work’ policy introduced in 2016, requiring ‘a clearly defined maximum level of drugs and alcohol in the system…’ is the basis for the AODPs in 2013 and 2018. This is to be reviewed by the end of 2019, but to his knowledge the review has not commenced. It includes the following reference:

•  ‘The company will educate an empower workers in fulfilling their responsibilities of presenting themselves fit for work.; and

•  The company will establish systems for identifying, managing and monitoring fatigue, alcohol and drug risks.’

[75] In respect to the existing AODP, Mr Pitman said he was responsible for recommending to the CEO that the procedure be published on 20 March 2018 and reviewed in March 2021. Mr Pitman said a substantive review had been initiated before March 2018, but as it appeared such a review would not be complete in the timeframe, the existing procedure was published to ensure continuity and currency. Mr Pitman agreed the more substantive review was that commenced by Ms Drakos in April 2018. He conceded that a review was commenced almost immediately after the procedure was extended for review until 2021. He accepted a shorter review period could have been adopted and that this review could have been aligned with the Board’s general safety policy review and replacement policy due in early 2020. Mr Pitman conceded neither the employees nor Unions were told of Ms Drakos’ substantive review at the time. However, the means of consultation included direct advice to employees through online communications seeking their feedback and advice and consultation in the Consultative Committee.

[76] It was Mr Pitman’s evidence that he had a number of discussions with Ms Drakos from April 2018 and had formed his views as to the need for policy change after discussions with her. He had accepted her recommendations based on the advice and information Ms Drakos had provided. This was presented to the Board’s subcommittee on 7 August 2018. Formal approval was not sought from the Committee, but it is normal practice to take such a policy or procedure to the Committee. Consultation with staff commenced after this meeting, but he was not involved until Ms Drakos’ formal recommendation in February 2019. Mr Pitman said there were some changes to the proposed procedure throughout February and April 2019, but not material to the main issues, which remained. Mr Pitman confirmed that the Consultative Committee process is purely consultative. There was a reference to the parties ‘interests’ as discussed by the Committee, but no recommendations. Mr Pitman confirmed that one of the minor changes proposed was for Endeavour to have the right to send any sample, whether urine or oral, or negative or non-negative onsite, to a laboratory for confirmatory testing. He understood this arose from a discussion about detection of synthetic drugs.

[77] As to the operational work undertaken by Endeavour employees, Mr Pitman agreed it had not changed in recent years. He and Ms Drakos relied on a report form 2012 known as the Love Report. He confirmed that his comments in respect to work other than high-risk work, are not new features of the work performed in those roles. He affirmed that the more prescriptive statutory and regulatory requirements for the electricity industry are not new, or substantially changed. It was more a case of work practice and policy changes. One recent example of change (not yet wholly completed) is a review of all live low voltage work practices. Mr Pitman agreed that this change is to bring low voltage work up to comparable standards for high-risk work (which the employees are already doing).

[78] Mr Pitman was asked about another reason for the change being the level of detection for drugs and alcohol under the existing procedure, including for post incident detection. However, Mr Pitman conceded he was only aware of one positive post incident test outcome in 6 years, being on 20 July 2016. This incident did not result in any change in the AODP at the time.

[79] Mr Pitman agreed that since the introduction of the 2013 AODP, over 4500 random tests have been conducted on employees and contractors and the number of tests and positive results were:

(Noting employee numbers in 2014 were 2564 and in 2019 were 1802.)

Mr Pitman accepted that at the time of Ms Drakos’ review position, breaches were going down.

[80] Mr Pitman was asked about his comment that human factors are a common contributory factor in safety incidents. He based this on a report in 2019 – ‘Fatal risks’ – which disclosed that 80% of safety incidents related to ‘Exposure to unintended discharge of electricity’ 49%, and ‘Inadvertent contact with plant and vehicles’ 30%. 85% of these incidents involved at least one contributing factor related to Individual/Team actions. Mr Pitman could not say how many incidents this report had examined.

[81] Mr Pitman acknowledged that according to the existing procedure, post-incident and cause/suspicion requires alcohol/drug testing, yet since 2016 there has been only two such post incident tests. When asked if these figures suggested a real drug and alcohol problem in the workforce, Mr Pitman replied, ‘maybe not’.

[82] Mr Pitman’s cross examination then moved to his comment about the need for policy change based on the information about drug use in the community, arising from the Australian Government National Drug Strategy Household Survey 2016 (the ‘2016 Household Survey’) data which had been provided to him by Ms Drakos. He recalled looking at other information dealing with increased use of ‘ice’ and synthetic drugs in the community. Mr Pitman was unaware that the 2016 Household Survey found:

•  The proportion of the population consuming alcohol daily had declined between 2013-2016.

•  The proportion of people exceeding lifetime risk guidelines had also declined.

•  There was no change in the use of illicit drugs between 2013-2016.

•  There was a significant decline in the use of specific drugs between 2013-2016, including methamphetamines down from 2.1% to 1.4%.

•  Use of synthetic cannabinoids had gone down from 1.2% to 0.3%.

Mr Pitman could not say whether this evidence demonstrated an increase in the use of synthetic drugs. He had gained his knowledge from discussion with Ms Drakos, but could not say where she had obtained the information. Mr Pitman was not aware that the use of ‘ice’ as a proportion of methamphetamine users had reduced.

[83] Mr Pitman was referred to the chart of information as to other energy and other industries as to their alcohol and drug policies. It is as follows:

Mr Pitman was unable to say what exemptions applied to some of the energy entities when they engage contractors. He understood when Endeavour employees work on Lendlease sites, they are required to comply with Lendlease’s drug and alcohol policies.

[84] As to recent changes to the Essential Energy Alcohol and Drugs Policy, Mr Pitman was unaware of what procedure had been adopted, but understood it included a BAC cut-off of zero, with urine testing for follow up post incident testing, but not for random testing.

[85] Mr Pitman had relied on discussions he had with Ms Drakos about potential impairment levels between 0.00% and 0.02%. He could not point to any research or studies on the issue, but recalled that Endeavour had called expert evidence in the 2012 case which it relied on to accept 0.02% as the appropriate level for the workforce. Mr Pitman acknowledged that he had no evidence that 0.00% BAC would have a deterrent effect. He had made an assumption it would do so.

[86] As to uniformity, Mr Pitman agreed that uniformity would also be achieved if 0.02% was applied across the workforce. He could not recall if Ms Drakos had told him that the Unions, during consultation, had proposed 0.02% BAC for the entire workforce. Mr Pitman could not identify the productivity savings of having to assess risk levels for roles with different cut-off levels. He believed there might have been some confusion amongst workers moving from one role to another with different cut-off levels. Nevertheless, Endeavour does its best to clearly communicate with its workers about any policy or procedure, including the AODP, and does it effectively. He conceded that no worker had told him of any confusion as to high and low-risk work and Ms Drakos did not report to him of any concerns put to her.

[87] Mr Pitman confirmed that Endeavour trains all employees on the AODP and what is required of them to conform with the procedure. Endeavour cannot guarantee every individual is not confused about the differentiation of high and low-risk work. As to a suggestion of an ‘us and them’ mentality, Mr Pitman said no one had complained to him about the distinction between field based an office-based employees vis a vis, 0.02% and 0.05%, but some of his operational colleagues had mentioned it. Mr Pitman agreed there would be very many other differences applying to different groups of workers.

[88] Mr Pitman acknowledged that the ‘blended’ 50/50 oral and urine testing proposal did not arise from the consultation process – it was Ms Drakos’ original review proposal. Mr Pitman had not relied on any research as to the greater deterrent effects a ‘blended’ approach would have. He had assumed a stronger testing regime would act as a greater deterrent.

[89] Based on Ms Drakos’ recommendations, Mr Pitman believed that oral testing does not detect ‘ecstasy, amphetamines or opioids’, whereas urine testing will. Urine testing would also improve productivity by reducing unnecessary distress for employees due to false non-negative results. Mr Pitman accepted that the number of false results were about 12-16 a year, although Ms Drakos understood that there were only 30 such stand downs over 6 years. She agreed that not all positive onsite test results mean an automatic stand down, as advice is sought from the MRO.

[90] Mr Pitman was asked about his understanding of the differences in detection windows between oral and urine testing’, He did not know what drugs, other than cannabis, have a longer detection window when urine testing is used. In respect to cannabis, Mr Pitman understood detection with oral testing is four to six hours after consumption, and four to six days with urine testing. He was unaware of whether there is a substantially longer period if a person is a habitual user. He did not know if detection after 4-6 days would indicate any level of impairment. This was not a concern he was aware of. Mr Pitman could not be sure of any level of impairment outside the window of 4-6 days, but still believed there was a risk of impairment within that window.

[91] Mr Pitman was referred to the 2018 AODP which highlights counselling and rehabilitation as preferred methods for managing procedure breaches, and disciplinary action is a last resort. He could not say if any employee had been dismissed for a positive drug or alcohol test. The procedure provides for a first and final warning, verbal counselling or a warning for a first breach. A further breach in a 12-month period might result in disciplinary action, including dismissal. By contrast, Mr Pitman was taken to the proposed AODP which states that any breach of the procedure would be considered serious misconduct, which may result in disciplinary action. He agreed the procedure provides no guidelines as to what disciplinary action would be contemplated. Any final decision would be made by the Head of People and Culture, who reports to him.

[92] Mr Pitman said he had not considered, and had no view what disciplinary action would be appropriate, where an employee had consumed cannabis some days prior to a positive urine test. He had not considered this circumstance in formulating the proposed procedure. Mr Pitman did not know why the existing reference to a first breach attracting a warning was removed from the proposed procedure.

[93] In re-examination, Mr Pitman said that Endeavour’s policies were kept the same throughout the enterprise bargaining process so as to ensure an ability to vary policies after consultation with staff outside bargaining. He estimated that there were some 30 policies in this category. Mr Pitman believed it was best practice to review policies from time to time to improve them.

[94] Mr Pitman said that as a result of an invitation to staff in February 2019 to comment on the proposed AODP, about 80 emails were received from a total cohort of between 1,800-1,900 employees. Mr Pitman was asked to comment of the Union’s survey of employees from which 173 responses were received. He noted that 41 responded that they thought their BAC level was zero.

[95] Mr Pitman confirmed that he had considered all of the information and memos Ms Drakos had provided and which are referred to in the evidence. Mr Pitman said he and Ms Drakos had a ‘lot of discussion’ about the drugs that can be detected by urine testing and their impact on impairment.

[96] In questions from me, Mr Pitman could not explain why existing references to home-based testing and a transitional period were not included in the proposed AODP, but Endeavour had given undertakings that the transitional support would continue. Mr Pitman agreed there was no reason why the undertaking could not be included in the new AODP.

Ms Drakos

[97] In cross examination, Ms Drakos described the review and approval process Endeavour undertakes when making major changes to health and safety policies. She said that in respect to the minor word changes in the rollover of the AODP in March 2018, she had made the recommendation, it went to the Governance Risk and Compliance Group, then to Mr Pitman and then to the CEO. This was to satisfy the compulsory three-year review cycle. An earlier review had been undertaken in 2015 and approved with no substantial change, like the 2018 rollover.

[98] Ms Drakos agreed that soon after the March 2018 rollover, she commenced a further review. She acknowledged that she had not informed the employees or the Unions of her review and completed the review in July 2018, at which time she and Mr Pitman agreed on the need for the major changes to be made. Both the 0.00% BAC level and the ‘blended’ testing approach were discussed at this time and ultimately taken to the 7 August 2018 Executive Health, Safety and Environmental Committee for consultation. The Unions were informed on 4 September 2018.

[99] In further questioning, Ms Drakos confirmed the issues of concern and need for changes which informed her recommendations. She added that some drugs, including synthetic drugs, could not be accurately tested using oral fluid methods. However, she agreed synthetic drugs could not be tested by either onsite oral or urine tests.

[100] Ms Drakos agreed that the nature of the work performed by Endeavour employees had not changed. She understood that Endeavour is now subject to the Building Code when interacting with other PCBUs such as Lendlease on their sites (there was a difference between Mr Pitman and Ms Drakos as to whether Endeavour’s deregulated business, Ausconnex, was exempt from the Code. Ms Drakos ultimately did not disagree with Mr Pitman that Ausconnex was exempt). Ms Drakos agreed that Endeavour was not seeking to align all its health and safety policies with all of the PCBU companies where its employees work. Nor was she seeking to align all of Endeavour’s health and safety policies with UGL. Ms Drakos accepted that the leasing of the business in 2017 did not change the risk profile of Endeavour, or the tasks performed by its employees. Ms Drakos acknowledged that Endeavour’s geographic coverage had not changed since 2013. She said the average age of employees in the business is 46 years, 33% of the workforce are between 40-49 years and the majority of the workforce are males aged 25-60 years. She did not consider issues such as work status, educational or socioeconomic backgrounds of employees when making her recommendations.

[101] Ms Drakos compared these figures with the 2016 Household Survey and noted that ‘males in their 40s were the most likely age group to drink alcohol at risky levels.’ She agreed there had been a 2% downward trend from 2016. Mr Gibian pointed out other statistics in the survey Ms Drakos did not consider, which disclosed:

•  The age group 18-24 is the most likely group to engage in high levels of alcohol consumption in a single occasion;

•  People in their late teens and early twenties are more likely to consume 11 or more standard drinks at least monthly than other age groups.

[102] Ms Drakos was referred to her statement in which she said:

‘Operations in geographically remote areas where risky drinking and cannabis and methamphetamine use is statistically higher than major cities.’

For this, she had relied on the Survey’s conclusion that:

‘People living in remote and very remote areas are more likely to smoke, drink at risky levels and use cannabis and methamphetamines, but less likely to use illicit drugs.’

When asked about the ABS geographic definition of ‘remote’ and ‘very remote’, and shown a map, Ms Drakos acknowledged Endeavour does not operate in those regions (although may verge on ‘remote’). She had not satisfied herself that the definitions corresponded to Endeavour’s business coverage.

[103] Ms Drakos further agreed that no breakdown was undertaken of the age profile, location etc. in respect to the employees who had positive drug and alcohol tests since 2013. Ms Drakos said that risk behaviour was evident in different parts of the business and cited the Blue Mountains as one such area. However, she could not provide any details of the number of positive tests in the Blue Mountains area and she had not provided any such information to Mr Pitman or the Executive Health and Safety Committee.

[104] Ms Drakos was taken to her view that one of the reasons for her review was the number of tests remaining ‘relatively static’. This was despite the facts that the number of positive tests decreased between 2017 and 2018 and there had only ever been one post incident positive test.

[105] Another concern was the productivity impact and psychological effect on employees who have a false positive result. Ms Drakos accepted that not every person in this position is stood down. Mr Currey’s estimate of around 38 in 6 years sounded about right. Mr Drakos could not recall a discussion with Mr Currey on 4 February 2019 about the five-day turnaround for a laboratory urine testing following a positive oral test. She agreed no employee had spoken directly to her about the psychological effect on them when stood down.

[106] Ms Drakos claimed that there has been a number of disputes concerning the application of the procedure. She cited incidents involving two employees, one of whom related to a referral to the MRO; the other concerned an employee with a prescribed medication in his system. Both disputes were resolved following referral to, and recommendations by the Commission. Ms Drakos acknowledged that despite some management concerns, there was no refusal of any employee to undertake a urine test.

[107] As to consultation, Ms Drakos agreed that at the first meeting on 4 September 2018, Mr Currey had questioned as to whether Endeavour intended to introduce random urine testing. Ms Murison had said that Endeavour wished to identify and evaluate what it could do better, the areas of improvement within alcohol and other drugs process and how it could positively contribute to a safer workplace. However, all options, combinations and types of testing were being considered. She repeated this at the 20 September 2018 meeting. There was a suggestion to await the review of the Australian Standard in respect to fluid testing. Endeavour’s service provider, TDDA, had advised that an oral fluid cut-off using a verified device would ‘most likely only be available in a few years.’ Ms Drakos believed that waiting would cause undue delay in implementing an appropriate alcohol and other drugs procedure. The new standard was finalised in March 2019. Ms Drakos understood some progress has been made in getting a device to meet the Standards, being verified and accredited. She agreed that the new procedure may not be able to be complied with in terms of testing to the Australian Standard.

[108] At the meeting on 11 November 2018, there was a further presentation, setting out Endeavour and the Unions’ interests, a recap from TDDA and information from the MRO and a toxicologist with feedback from safety representatives. Ms Drakos said this was an interest-based negotiation, facilitated by Ms Murison. Options were presented at this meeting, and there was no feedback post the date of 11 November 2018.

[109] Ms Drakos’ memorandum was the next step on 12 February 2019. The Company’s preferred option was put to the meeting on 14 February 2019. There were then various meetings at a number of worksites. Ms Drakos agreed that what was proposed was that counselling and rehabilitation were the preferred methods for managing breaches (of the procedure). Disciplinary action was a last resort. Ms Drakos agreed that these and other associated references to Managing Breaches were not in the new AODP and there is reference there to:

‘Breaches of this procedure will be considered serious misconduct and the matter will be referred to People and Culture for possible disciplinary action.’

She claimed that this did not mean that Endeavour would not continue to support and assist employees seeking to resolve alcohol or drug issues. The intention was for any breach of the procedure to be referred to the People and Culture team. She conceded that there is no reference in the new procedure to a first breach being dealt with by a warning or counselling, and there is no reference to this change in any of the presentations to the Unions. Ms Drakos claimed the new wording was to provide flexibility on a ‘case by case’ basis. In answer to questions from me, Ms Drakos conceded that these changes came from Ms Murison in People and Culture.

[110] Ms Drakos further conceded that the new procedure does not refer to:

•  providing a urine sample in private (albeit it is part of the Standard);

•  that there was to be an increase in onsite and post-incident testing;

•  a modification of the non-negative notification form;

•  any reference to a transition period during which self-testing can occur;

•  providing education and awareness training sessions; or

•  testers being trained to be sensitive to the individual’s particular situation.

[111] Ms Drakos confirmed that if there is an oral fluid non-negative or negative site result, there would then be a urine sample sent to the laboratory for confirmatory testing.

[112] In re-examination, Ms Drakos said that if the Commission was to decide to include the previous reference to different disciplinary outcomes, there would be no difficulty in doing so. She was referred to some of the Q&A communications with employees as reflective of these issues.

[113] In respect to compliance with the 2019 Standard and testing devices, the intention is to work closely with service providers to source the appropriate device. At the end of re-examination, Ms Drakos was asked to identify two documents, the first being the interest-based presentation for the 11 November 2018 meeting (incorrectly dated 25 October 2018), and the other was the Company’s procedure on disciplinary action.

Mr Currey

[114] In cross examination, Mr Currey agreed it was not uncommon for Endeavour to review its policies and procedures from time to time. This was what he was advised of by Ms Murison on 14 August 2018. He agreed he did not initially object to Endeavour being prevented from doing so in respect to the AODP, which had only recently been reapproved in March 2018, as he accepted at this time, Endeavour was opening up the lines of communication. This happens all the time, but not always. He accepted that in the 4 September 2018 meeting, a timeframe for consultation was discussed.

[115] Mr Currey could not recall if a representative of Endeavour had mentioned changes in Endeavour’s business and changes in standards of the technology in relation to drug testing. He recalled the number of false negatives being raised. Endeavour had also raised the alleged confusion with two different BAC cut-off levels, the three day stand down of employees effect on productivity and mental health and the degradation of samples during transportation. Mr Currey denied that Ms Murison had said ‘all options are being considered’ in respect to his initial inquiries about introducing random urine testing. The words were ‘no, that’s not the reason for the review’.

[116] Mr Currey agreed that a PowerPoint presentation was made in the 4 September 2018 and 20 September 2018 meetings. He understood that Endeavour wanted to ensure that workers were fit for work and not impaired and its preferred approach was to provide a deterrence to reduce and manage workplace risks. Mr Currey had not been able to attend the consultation on 20 September 2018, but he understood a presentation by TDDA had been made and he received a copy of the presentation a few days later. He had understood TDDA’s concerns related to transportation of samples and the increasing use of synthetic drugs. He could not recall the question of impairment versus risk being raised. To some degree, Mr Currey believed many of the issues raised had been canvassed previously. He believed Endeavour was just using TDDA to justify its own position. However, he was more interested in obtaining the data and ensuring proper consultation.

[117] Mr Currey agreed there was another PowerPoint presentation in a meeting on 11 October 2018, in which the Company had raised concerns as to designer and prescription drugs and impairment versus risk. This last issue was to attempt to find out what risk Endeavour was trying to control. Discussion was had as to different testing methods and their profiles. He could not recall specific discussion on impairment.

[118] Mr Currey accepted that by the 18 October 2018, he was aware of Endeavour’s proposals for partial random urine testing and 0.00% BAC cut-off levels for all employees and that Endeavour had concerns with oral fluid testing.

[119] Mr Currey recalled that at a meeting on 11 November 2018 the presentation included a review of impairment at different BAC levels. Mr Currey was aware at that time that Essential Energy was moving towards a zero BAC level and it had been ‘settled’ in negotiations with the Unions. However, Mr Currey insisted that this did not mean his Union had agreed to it and the CEPU’s Executive would not consent for practical reasons. The CEPU also had a firm opposition to urine testing as it was invasive, due to its intrusion into a person’s privacy. At the time, the Unions did not agree to the statistics about community trends and drug usage.

[120] Mr Currey agreed that in the conciliation conference on 5 June 2019, he had proposed a 0.02% BAC for all employees as a sensible and reasonable resolution of the dispute and to have urine tests for confirmatory testing.

[121] Mr Currey said that by accepting urine testing in the above circumstances, he agreed it had a deterrent effect (as oral testing). However, the random nature of the testing is the ‘biggest deterrence’. Mr Currey noted that all of the experts agree that no method of drug testing determines or measures impairment. He accepted that this is the best that can be done to detect the risk of impairment. It was not just his Union’s position that urine testing does not test for impairment; it was generally understood (as was oral fluid testing). Mr Currey accepted that unless an onsite test sample is a false negative, it will never get laboratory tested.

[122] Mr Currey did not dispute the purpose of the proposed AODP, providing it emphasised being ‘as far as reasonably practicable’ and did not conflict other sections of other policies. He accepted that oral fluid testing has a shorter drug detection window than urine testing and would be less likely to pick-up long-term use. Mr Currey agreed that oral testing does not test for all substances, just as urine testing does not do so either. The Union was suggesting both methods, but in a different context. Urine testing is invasive for the vast majority of employees and should be restricted to the circumstances he had described.

[123] Mr Currey said there had not been much discussion as to the method to be used for self-identification, but he considered this was better handled by referral to a medical practitioner. Mr Currey strongly disagreed with the proposed AODP’s failure to address the issue as a health and support issue and refers only to punitive disciplinary outcomes. This omission was never raised in the consultation process. Mr Currey accepted that there are other policies, which if breached, may result in disciplinary action. That has been the position for some time. He accepted there may be circumstances where a step in the disciplinary procedure might be bypassed and there is a need for some flexibility.

[124] Mr Currey agreed that the draft AODP was issued to the employees in February 2019 and he has had an opportunity to consult with his members since then about any issues they have with it. Mr Currey was asked to confirm each of the items listed as employee concerns or ‘interests’ in the ‘interest based’ bargaining process. He agreed feedback was sought from employees and a frequently asked question document had also been sent to employees. He agreed that many of the issues identified as employee interests were responded to by Endeavour including education, support, training, confidentiality and privacy, in order to satisfy these interests.

[125] Mr Currey was questioned about the Unions’ own Survey from which 173 responses had been received. He believed that a 23% proportion of people who believed that the BAC was already zero, indicated a failure by Endeavour to properly educate staff. Mr Currey acknowledged that not all questions had been answered (Q 3, 4 & 5 by anyone) because it was a snap online survey over two days coinciding with a major storm event (Mr Shariff called for the original raw data of the survey). Mr Currey accepted the survey disclosed many people had different responses to the questions put in the survey. As to whether there was general support or opposition to the proposed AODP, Mr Currey had believed that the Unions’ opposition to a zero BAC cut-off level and urine testing, was reflective of the membership’s view.

[126] In re-examination, Mr Currey reiterated the Unions’ concerns as to accepting urine testing for post incidents, when Endeavour could provide no evidence of any particular problem in this respect. Mr Currey affirmed that he had not been the organiser for Essential Energy for many years and had not been involved in any negotiations or discussions about its AODP.

Expert reports and evidence

[127] Expert reports and evidence were received from:

•  Dr John Lewis, BSc, MSc, PhD;

•  Prof Macdonald James Christie, BSc (Hons), PhD;

•  Mr Peter Simpson, BPsych, DipEd, MBA; and

•  Dr Michael Robertson, BSc (Hons), PhD.

It is to be observed that both Dr Lewis and Dr Robertson gave evidence in the 2012 proceedings before Hamberger SDP. I will not refer to the source studies, surveys or publications which all the experts relied, on except where necessary for context and explanation.

Dr John Lewis

[128] In his first report, Dr Lewis set out his 30 years’ experience as a toxicologist in the field of drugs of abuse and their testing. He is a leading expert and publisher in the field and is the Chairman of Standards Australia CH-036 which is responsible for the development of Australian and New Zealand standards for the processes for specimen collection, and the detection and quantification of drugs of abuse in urine.

[129] Dr Lewis was asked to respond to the following:

1. ‘Please provide your opinion on the adequacy of oral fluid testing when adopted as the only method of testing for drugs, including in relation to:

a) Detecting benzodiazepines; and

b) Detecting tetrahydrocannabinol (THC)

2. Please provide your opinion on the adequacy of urine fluid testing when adopted as the only method of testing for drugs, including in relation to:

a) Detecting benzodiazepines; and

b) Detecting tetrahydrocannabinol (THC)

3. Please provide your opinion on selecting, on a random basis, the method of testing to be used (either urine or oral fluid) and the efficacy of this method in relation to:

a) Detecting drug use; and

b) Determining impairment’

[130] Dr Lewis opined that for oral or saliva testing (the terms are interchangeable) to be appropriate for identifying drug use, drugs must first diffuse from blood (plasma) into saliva and then into the oral cavity, and second, the concentration of such drugs must be sufficiently high to be detected in an initial screening test and within the acute period of impairment; being the immediate period of euphoria. This time may extend several hours after consumption.

Detecting benzodiazepines using oral testing

[131] Benzodiazepines are a group of drugs within the diazepam (Valium) family. They are legal and available by prescription for a variety of ailments, including anxiety, sleep disorders, muscle spasms and pre-surgical sedation.

[132] After referring to various studies and noting that the Australian Standard AS/NZ 4760. 2019, does not include benzodiazepines in its screening protocols, and that existing oral fluid devices have lower sensitivity levels (50-60%) than recommended (90%), Dr Lewis concluded:

‘benzodiazepines represent a group of medications that are widely prescribed in Australia, and while generally safe, they cause drowsiness and effects can be exacerbated when taken with alcohol or other medications. They are also addictive. Oral fluid is an inappropriate matrix for the detection of benzodiazepines because levels are extremely low and to date few, if any, screening devices have the capability of reliably detecting them. Although Australian Standard AS/NZS 4760 has excluded this group, organisations could screen for them; however, they would not be able have devices independently verified as fit-for-purpose as no verification criteria exist.’

Detecting tetrahydrocannabinol (‘THC’) using oral testing

[133] THC is the psychoactive ingredient in cannabis. It is usually smoked, but can be consumed. This means that immediately after smoking, the oral cavity has very high concentrations of THC. However, once dissipated over a few hours, the correlation between plasma and oral fluid levels is highly variable. Reports after 6 hours of having smoked a 6.8% THC cigarette indicate median levels of 10ng/mL (below the cut-off 15ng/mL and providing many false negative results). By reference to other studies, Mr Lewis concluded that the acute period of impairment using realistic amounts of THC was about 6 hours, meaning a testing device must have a sensitivity to detect THC up to 6 hours after consumption. Dr Lewis said oral fluid tests using existing devices, have a poor detectability level for THC and most regular cannabis users would pass the screening cut-off of 15ng/mL. Further, persons consuming cannabis in food will invariably pass an oral fluid test because such consumption generally produces lower and later peaks in blood concentrations, than smoked THC (probably no greater than 8ng/mL).

[134] In summary, Dr Lewis said:

‘oral fluid is not a suitable matrix for cannabis detection. Concentrations of THC fall rapidly shortly after smoking and there is a high variability in the ability of various collection pads to quantitatively absorb THC from the oral cavity and then release it into a buffer solution for analysis. To date on-site devices for oral fluid have demonstrated inadequate sensitivity (measure of trues positives) for THC. Finally, concentrations of THC in oral fluid are extremely low following the consumption of foodstuffs laced with cannabis. The cut-off mandated in AS/NZS 4760:2019 is far too high in order to detect THC within the acute period of impairment.’

[135] Dr Lewis identified that the suitability of oral fluid testing for benzodiazepines and THC is further limited by:

(a) the verification of testing devices rests with the client to insist that any device be independently and appropriately verified; and

(b) a collector of oral fluid who sends the specimen directly to a laboratory testing. A urine sample requires a secondary test which provides greater confidence in the result.

Detecting benzodiazepines using urine testing

[136] Dr Lewis said that there are variations in the detection of these drugs as they have different half-lives; e.g. midazolam is very short acting, while diazepam is long acting. This may mean that these drugs can be detected in urine after the prolonged effects have worn off. As these drugs are prescribed, urine testing provides evidence as to an employee’s taking them. Dr Lewis believed that urine is the most suitable matrix for detecting benzodiazepines. The standard cut-off levels are adequate for detecting recent use of these substances. Unlike oral testing, there are no issues of collection pads, or buffer solutions, or substances in the mouth which can mask or inhibit detection. Onsite urine screening devices are independently verified in the urine standards and testing is highly sensitive and straightforward, using either gas or liquid chromatography - mass spectrometry.

Detecting THC using urine testing

[137] Dr Lewis said that THC is not normally detected in urine. However, the major urinary metabolite (‘THCCGOH’) is invariably found following cannabis use by either smoking or oral ingestion. The standard cut-offs are designed to distinguish between passive inhalation and recent consumption and onsite devices are reliable in providing substantial evidence of recent cannabis use, including by ingestion (unlike oral testing). Sensitivity and specificity of testing has been found to be over 92% reliable.

[138] Dr Lewis rejected criticism of urine testing as detecting THC levels weeks or months after use and users are therefore being unfairly penalised. This is not true. Studies have shown that first time users excrete THC metabolites within 24 hours and chronic users tend to have negative results after 1-2 weeks of abstaining from use. Frequent users may have positive urine for several days after use.

[139] Dr Lewis rejected claims that urine testing tended to indicate ‘historical’ data. Rather, a series of urine tests can demonstrate:

•  infrequent use;

•  reducing use due to abstinence; or

•  chronic use (urine levels in the hundreds or thousands of ng/L).

In the latter indicator, this will represent chronic impairment.

Random testing efficacy as a detection method

[140] Dr Lewis believed that random urine testing is more effective than oral fluid as a deterrent because:

•  there is no advance warning of an impending test and therefore no opportunity to either adulterate or minimise detection by switching with another person, using fake urine or drinking copious amounts of water to dilute the urine;

•  as urine testing can detect recent use and the testing is accurate it is preferred to random oral testing because of the low probability of detecting recent drug use; and

•  current onsite devices are unreliable with poor sensitivity to detect benzodiazepines and cannabis.

[141] Dr Lewis said that while it was difficult to adulterate oral fluid, the means of doing so by mouthwashes containing alcohol or drugs (pseudoephedrine) which dry the oral cavity, are relatively simple and will limit detection. Dr Lewis referred to the sensitivity limitations in the Police roadside use of oral fluid tests in detecting THC levels in drivers, showing inaccurate results in more than 20% of tests.

[142] In short, Dr Lewis believed that random urine testing is more accurate and reliable and has far fewer false results than oral fluid testing.

Determining impairment

[143] Dr Lewis agreed (as do all the experts) that neither means of testing can determine impairment. Studies show there is a relationship between a drug found by oral testing as being in a person’s blood and a high probability of impairment. However, because of highly variable ratios between oral fluids and blood levels of methamphetamines, it could mean for some users of methamphetamine, the concentration in oral fluid could be far less than that in blood, at a time when a person is most likely to be impaired. Such a test would not be reliable, as a negative result would not necessarily preclude recent use. Dr Lewis said that methamphetamine withdrawal effects can last for days, including irritability, anxiety, paranoia, delusions and hallucinations, with the most impairing effects, even for infrequent users, being fatigue. It was his opinion that a person could suffer one or more impairing symptoms, sometime after use, when both blood and oral fluid levels were below detection limits. He noted that urine offered a higher drug concentration and therefore a greater window of detection.

[144] In respect to MDMA (ecstasy) use, impairing effects after 24 hours include muscle tension in the jaw, fatigue, depression, anxiety, insomnia, loss of balance and confusion. The window of detection for MDMA in oral fluid of infrequent users would be hours. However, the above impairing affects can last for more than 24-48 hours, during a time in which an oral test would be negative. Urine tests can detect MDMA for up to 48 hours after use, with a high probability of some degree of residual impairment.

[145] Dr Lewis said that THC impairment has been demonstrated in occasional and chronic users and impairment has been found after 8 hours of smoking one joint. THC would be undetectable using oral testing devices during this period. He reiterated that urine testing is the most appropriate means of identifying risk of impairment in chronic cannabis users.

[146] Dr Lewis observed that stimulant drugs such as methamphetamine, MDMA and cocaine can cause impairment during withdrawal periods after the acute immediate effect has worn off. Such effects include fatigue, sleep disturbance, depressed mood and agitation. Being able to identify cocaine after 1-2 days, using urine testing, would provide the ability to assess impairment after the effects had worn off. After multiple oral doses of cocaine, oral fluid levels fall to 10/L within 10 hours, whereas urine tests can easily detect usage for 1-2 days. Cocaine would be extremely difficult to detect in oral fluid 1-2 days after a single use. Urine testing would detect such consumption.

[147] In summary Dr Lewis said:

‘Although drugs found in oral fluid are an indicator of very recent use (hours), there remains an issue with the ability to detect benzodiazepines and cannabis use some hours after consumption and certainly within the 6-hour period of immediate pharmacological effect. Impairment has been demonstrated for one or more days following consumption of methylamphetamine, MDMA and cocaine. Oral fluid may well fail to identify very low levels of these drugs at this time, whereas urine testing almost certainly will do so.’

Professor MacDonald Christie

[148] In addition to the same questions asked of Dr Lewis (see: [129] above), Professor Christie was asked to give an opinion on whether impairment increases with increasing BAC levels and the difference in impairment associated with BAC levels of 0.02% and 0.05%, and between 0.00% and 0.02%.

[149] As to this later opinion, Professor Christie said that from epidemiological and experimental evidence, alcohol consumption impairs human performance on safety sensitive tasks; that impairment is detectable at very low BACs and increases exponentially as BAC increases. Studies have shown that in the general driving population, the relative risk of a motor vehicle accident is 1.4 times at BAC of 0.05%; 4.8 times at 0.10%; 8.3 times at 0.15% and 81.8% at 0.20%. There is a greater risk of impairment in young drivers compared to older, more experienced drivers and severity of impairment will depend on the complexity of the task. Simple and overlearned tasks, such as driving, being less effected than complex, demanding psychomotor or cognitive tasks. Professor Christie said that, broadly speaking, cognitive psychomotor impairments produced by alcohol relevant for safe performance of many tasks in the workplace include:

‘impairment of balance, impairment of fine motor control, impairment of gross motor control, decreased alertness, decreased perceptual acuity, decreased reaction time, decreased visual attention, impaired judgment of speed and distance and impaired decision making. Alcohol also affects judgment, reasoning and memory.’

BACs between 0.02% and 0.05%

[150] Professor Christie said that the ability to successfully divide attention between two or more demands is consistently the most sensitive to disruption by very low BACs beginning at 0.005-0.01%. Characteristics are more acute in complex flight simulator studies and mostly involve drowsiness. In BACs between 0.02% and 0.05%, information processing or perceptual speed is impaired at 0.03%. Choice reduction time, vigilance and visual functions show impairment in the range 0.02-0.05%.

[151] Driving in simulators and on the road were examined for divided attention and vigilance, with 73% of the tests exhibiting impairment at 0.039% with tracking and drowsiness identified in 65% of tasks at 0.39%. Individuals who have consumed large quantities of alcohol in the proceeding 12 hours (or longer) suffer ‘hangover’ effects and show considerable fatigue, further impacting on impairment and impaired psychomotor performance and ability to work safely for extended periods. Detection of BAC in the range below 0.02% is possible following consumption of very large quantities of alcohol (12 standard drinks) followed by 8-10 hours of no consumption. Most individuals would be severely impaired and produce ‘hangover’ effects long after 8 hours with substantial impairment.

[152] In summary, Professor Christie said:

‘there is no doubt that alcohol can produce significant impairments of skills required to safely perform complex or high-risk tasks in the ranges below 0.02% and 0.05%, particularly in vulnerable sub-populations or hangover.’

Detecting benzodiazepines using oral testing

[153] Professor Christie said benzodiazepines are the most commonly misused prescription medications, with more than 1% of the Australian population reporting misuse in the last 12 months. Oral fluid is not suitable for detecting benzodiazepines during periods of impairment, as they are tightly bound to blood proteins and only the free unbound portion can pass from blood plasma into oral fluid. This means there will be very low concentrations in oral fluid, making it very difficult to detect. Although variable, it is estimated that oral fluid to saliva ratios are between 0.036% and 0.3% for different drugs in this class. Cut-offs for detection during a timeframe of pharmacological effect, after more than 12 hours of ingestion, should be less than 1ng/ml. This is readily obtainable in the laboratory, but not possible using currently available site screening devices. Such devices have unacceptably poor sensitivity for the detection of benzodiazepines.

Detecting THC by oral testing

[154] Professor Christie agreed that oral fluid is not suitable for sensitive, accurate detection of THC during periods of impairment being within 1-2 hours of consumption – a period much shorter than the period of impairment. The Australian standard for the cut-off for THC of 15ng/ml at screening is not only higher than internationally recommended levels, but is unlikely to detect cannabis use for more than 2-3 hours after smoking, less than the likely impairment of up to 6 hours or more after use. The evidence is that higher doses produce more severe impairment beyond 6 hours.

[155] From the international studies, Professor Christie believes that the correlation between oral fluid and blood concentration is so weak as to be meaningless, and that it would be sensible to set lower limits to ensure the likelihood of detection during the period of impairment up to 6 hours. At a low level of consumption, 83% of subjects were found to have less than 15ng/L within 2.5 hours of smoking and 50% with a high level of consumption were negative within 2.5 hours.

[156] Professor Christie said there was an emerging consensus that an oral fluid test cut-off of 5ng/L is necessary to reliably detect recent cannabis use. Oral fluid screening testing devices need to be sensitive and accurate to ensure optimal deterrence, minimise false negatives, and increase the detection window closer to 6 hours. Professor Christie said many oral screening devices do not meet the threshold cut-off of 15ng/L, and very few meet the emerging international standards. All current devices have sensitivities of 0-70% range, meaning false negatives (‘FN’) (see: Annexure ‘A’), are a serious issue with fluid testing, as impaired individuals are never detected.

[157] Professor Christie said another weakness of oral fluid detection arises from the mode of ingestion, as it is almost undetectable when consumed orally and not smoked. Even high consumed levels of THC recorded between 1-2 and 7 ng/L in less than 2 hours. This is a serious concern because oral ingestion produces a more prolonged period of impairment than smoking, but would not be detected at all at the current cut-off levels.

[158] Professor Christie believed further complications arise because there is no reliable process for confirmation testing of the same oral fluid. This is because THC is readily absorbed into plastic and glass collection tubes, meaning a high positive level may go undetected in confirmatory testing.

Detecting benzodiazepines by urine testing

[159] Professor Christie’s opinion is that urine testing for benzodiazepines is the most reliable process currently available. It has sensitivity to detect drugs during periods of impairment in a range of drugs (around 99% of prescribed benzodiazepines) which is significantly greater in urine than oral fluid. However, false positive rates in urine screening remain higher for this class of drugs than others, because of a very large number of benzodiazepine drugs that must be recognised by the test. Detection windows can be several days or longer, given benzodiazepines are eliminated slowly from the body and at variable rates depending on the specific drug.

Detecting THC by urine testing

[160] Professor Christie opined that urine testing for the presence of cannabinoids under the standard is the most reliable method currently available for detecting recent cannabis use (90-95%). It is considered to suffer from the disadvantage that it detects use for considerably longer periods than impairment.

[161] The studies indicate that for occasional cannabis users, the likelihood of detection for more than 1-2 days after consumption is very low, with variable detection times. However, such doses would be expected to produce impairment for several hours. Other studies have shown that for both low and high smoking doses, urine testing was positive for an average of 26-49 hours using the 50ng/mL cut-off. This means that random testing is unlikely to detect the occasional cannabis user for one or two days after use.

[162] Professor Christie said that high concentrations of cannabis metabolites occur in frequent or daily users. The excretion half-life of a major cannabis metabolite has a mean of 3.0 days and in heavy or chronic users positive results may be detected many days, even weeks after cessation of smoking. Therefore, urine testing will usually detect the highest risk group and the ones with the greatest impairment.

Effectiveness of random testing to detect drug and alcohol use and determine impairment

[163] From various studies, Professor Christie made some general observations as follows:

•  No drug or alcohol test directly determines the presence of impairment due to drugs or alcohol in bodily fluids, but is more or less indicative of impairment.

•  The issue is most straightforward for alcohol, as the relationship between blood and brain alcohol concentration and impairment is simple and direct.

•  Impairment by other drugs is more complex. However, impairment is demonstrated during the period of acute intoxication and sometimes longer.

•  Oral fluid detection for drugs indicates only a relative risk of impairment.

•  Impairment by cannabis has been more widely studied than other drugs.

•  Impairment and increased accident risk persists for up to 6 hours after consumption of the usual cannabis doses preferred by users.

•  THC can be detected in blood for a similar period.

•  Impairment by cannabis persists while blood THC levels are elevated near of above 5ng/mL.

•  Impairment persists for much longer than 4 hours for higher doses.

•  The likelihood of impairment increases with THC between 4-10ng/mL, 75-90% of measures show impairment between 10-20ng/mL and 100% where THC is above 60ng/mL.

•  Increased driver accident risk is higher for blood THC levels of near, or above 5ng/mL than BAC levels of 0.05%.

•  Oral fluid tests need to be capable of detecting consumption for up to 6 hours after cannabis use to be reliable for detecting impairment.

•  A cut-off of 5ng/mL is a reliable index of a high likelihood of impairment.

•  commercially available fluid test devices can reliably meet these requirements and their reliability for detecting high-risk impairment for cannabis is relatively poor.

•  •There is ample evidence that other psychoactive drugs in several classes produce severe impairment of performance and increased accident risk.

•  Opioids and benzodiazepines are among the top 10 prescription medicines and are misused. Both classes have profound adverse effects on skilled performance.

•  Low doses of stimulants (amphetamines, methamphetamines, cocaine, ephedrine and pseudoephedrine etc) are thought to enhance alertness and improve reaction time.

•  Stimulants are highly addictive, widely abused and chronic users suffer serious long-term adverse effects, including hallucinations and psychotic behaviour.

•  The above effects severely impair performance of skilled tasks and cause serious accidents.

•  Opioids (codeine, morphine, heroin, methadone etc.), whether used in therapeutic or illicit settings, all produce sedative effects, which affect performance.

•  Opioid effects impair reaction time, muscle coordination attention and short-term memory loss.

•  There is little or no observed impairment in patients on long term, stable and moderate to high doses of morphine for pain relief.

•  Opioid misuse is associated with intoxication and withdrawal, both of which produce severe impairment and users may risk fatal overdose.

•  Sedative benzodiazepine produces severe impairment of performance and are widely misused.

•  As with opioids, tolerance may vary so therapeutic purpose is critical in determining an individual’s safety risk.

•  Misuse and illicit use of drugs usually involves high, frequent doses which is associated with high-risk impairment.

•  Random drug testing is likely to detect regular users of many drugs, including widely used psychoactive drugs likely to cause impairment.

•  Oral fluid tests for some drugs e.g. opioids, are more sensitive specific than for cannabis.

•  Oral fluid tests generally do not perform well for detection of benzodiazepines.

Detecting drug use

[164] Professor Christie believed that ‘blended’ testing can overcome the limitations of either modality used in isolation. Oral fluid testing cannot reliably detect benzodiazepine and is very insensitive for detection of cannabis. Urine testing addresses these failings. However, confirmation urine testing cannot identify whether the initial oral test had identified a drug concentration level above the thresholds, but it can establish the target drug and therefore was not a false positive result.

[165] Professor Christie opined that deterrence is a major feature of random workplace drug testing. The essential element of deterrence is the perception of the likelihood of detection and unless the likelihood is sufficiently high, there is little motivation to change behaviour. Random testing addresses this and success features will include high visibility, unpredictable patterns and appropriate frequency of testing.

[166] Professor Christie believed that, like the random breath testing of drivers, random testing acts as a deterrent for both frequent and occasional use of alcohol and other drugs, and acts to counteract illicit drug use. Professor Christie noted that there is limited evidence on the optimal frequency of random testing as an effective improvement strategy in workplace safety; however, he believed such testing should be no less than once per year on average.

[167] Professor Christie believed that a deterrence risk might arise if regular drug users acquire knowledge of the limitations on oral testing for cannabis use. Including random urine testing would address this risk and enhance the deterrent factor and is sufficiently sensitive to detect all recent cannabis use; in particular, chronic users who may be frequently impaired. This is to be balanced with the low probability of detection by urine testing of occasional cannabis users who have not used the drug for a day or two.

Determining impairment

[168] Professor Christie said that testing for drugs in body fluids only provides an indication of risk of impairment. These risks include:

1. The severity and duration of impairment during acute intoxication with the drug with regard to dose.

2. The severity and duration of impairment during the post-intoxication period (hangover).

3. The severity of long-term impairment associated with chronic or dependent use of the drug.

4. The prevalence of misuse of the drug in the community and workplace, and prevalence of different patterns of use of the drug, ranging from casual to dependent, chronic use.

By reference to his comments, Professor Christie believes that nearly all skills related to the performance of safety sensitive tasks are impaired at BACs in the vicinity of 0.05% and at much lower levels for complex tasks.

[169] As to drugs of impairment, it is more complex and difficult to measure. Some European countries have set THC levels of 1ng/mL because of evidence of increase accident risk. Most international research agree that blood THC above 5ng/mL is strongly linked to impairment of driving skills. Professor Christie agreed (as discussed above) that oral fluid and urine testing have different merits and weaknesses for identification of impairment risk. He believed that urine tests can complement the failings of oral fluid tests because of a greater likelihood of detecting recent occasional use of cannabis or benzodiazepines, which may be associated with current impairment. However, the limitation is that detection may substantially outlast the impairment period. Urine tests have a further advantage in that they are more likely to detect regular or chronic users of cannabis or benzodiazepines – the highest risk group of drug users.

Statement of Mr Peter Simpson

[170] Mr Simpson has had experience as a psychologist since 1975 and is currently a director of Baylon, Simpson and Simpson Corporate Psychology Services (‘BSS’). In 2004, he founded Gryphon Psychology which provides psychological and consulting services to private and public sector clients based in the Bowen Basin in Queensland. In 2011, he founded BSS New Zealand and in the period 2010-2019 he had worked with companies in South Africa, Chile, Colombia, Suriname and the USA. He is the author of numerous conference papers, articles and books on fitness for work. He has assisted in developing and implementing fitness for work programs for numerous Australian companies, primarily in the mining sector.

[171] Mr Simpson’s advice is based on following the relevant literature and by contact with expert toxicologists. Mr Simpson was asked to provide his opinion on two questions:

1. Selecting, on a random basis, the method of testing to be used (either urine or oral fluid) and the efficacy of this method as set out in the proposed Alcohol and Other Drugs Procedure.

2. The efficacy of adopting a 0.00% BAC for all workers at workplaces of Endeavour Energy.

[172] As to Question 1, Mr Simpson believed that the fundamental purpose of random alcohol and drug testing is to motivate individuals to moderate their drinking and substance use and increase both their willingness and ability to manage their own and their workmate’s fitness for work. This was amply demonstrated within the first 12 months of the introduction of Random Breath Testing (‘RBT’) in Australia. The high visibility of RBT saw a substantial reduction in the road death toll (together with other factors) and now most individuals actively plan how they will get home safely before commencing drinking.

[173] Mr Simpson said that given Endeavour’s primary objective (in the present AODP) is deterrence and reducing the risks and harmful consequences of alcohol and other drugs in the workplace, the method of drug testing is critically important. An effective deterrent must ensure that an individual believes there is a high probability of being detected. This will depend on the accuracy of the test and the window of detection. Obviously, the greater the accuracy and the longer the window of detection, the more likely a use of drugs will be detected and thus the greater the deterrence value.

[174] Mr Simpson discussed deterrence with detection of impairment, the latter of which should not be the primary purpose of random testing because:

(a) If the purpose is eliminating impairment, then every person should be tested every day for every potential cause of impairment. This is obviously impractical (although some testing devices purport to measure impairment, but are unreliable given that there is a very significant number of false positives and/or negative results).

(b) Testing for impairment will only detect current intoxication and does not address other impairment effects such as hangover and withdrawal effects, increased risk taking and fatigue, including sleep deprivation.

[175] Mr Simpson provided a table of drugs and their windows of detection:

(Source: Mayo Clinic Guidelines Jan 2008)

[176] Mr Simpson believed that since the publication of the Australian Standard for oral fluid testing in 2006, there had been an increase interest in urine testing as an alternative, as the scientific research indicates that oral testing is significantly less accurate than urine and produces a large number of false positives and false negatives.

[177] Mr Simpson said one of the early concerns was the very short detection time, even for high levels of cannabis. Other concerns were the reliability of oral tests, as the following table describes:

(Source: Verstraete, Raes - Rosita 2 Project)

[178] The study concluded that no device was considered to be reliable enough in order to be recommended for roadside screening of drivers. These conclusions were confirmed in 2012 in the Druid Project. Given the time since these studies, Mr Simpson undertook a search of recent studies to determine if the earlier results still reflect the accuracy of oral fluid testing. A 2019 study by Mariller and Verstraete, while acknowledging some improvements, confirmed the earlier results.

[179] Mr Simpson also referred to studies which discussed impairment effects following a night of heavy alcohol consumption when BAC levels may be low, or even zero. Similarly, there was evidence of measurable subjective and behavioural effects the morning after smoking marijuana and for as long as 24 hours after a moderate dose of marijuana where the person was unaware of the impairment.

[180] A 2011 study by Crean et al, reviewed the literature and concluded:

‘Investigations on the residual effects of cannabis on executive functioning show that recently abstinent cannabis users (7 hours to 20 days) may experience impairment in certain aspects of executive functioning. Attention, concentration, inhibition and impulsivity may or may not continue to be impaired during the interval associated with the elimination of THC and its metabolites from the brain. Decision-making and risk-taking capabilities have not been thoroughly studied during this period, but a single study by Whitlow et al. (2004) suggests that these abilities are impaired.’

[181] Mr Simpson also identified a US and Australian study which revealed a steady increase in THC consumption/potency through selective plant breeding and better cultivation methods since the 1970s (< 2%) to 2009 (8%), 2014 (12%).

[182] In summary, Mr Simpson concluded that acute and chronic cannabis use is likely to result in impairment in the days following cessation of use. Given oral fluid testing has low probability of detecting acute use (within hours) it is unlikely to deter use in the days before returning to work where significant impairment may be evident. It was Mr Simpson’s clinical experience (over 20 years) that regular cannabis users feel confident of avoiding detection the day after use when oral testing is used. For those reasons, he believed the inclusion of urine testing will create a greater deterrent to the use of drugs and promote Endeavour’s AODP.

[183] In respect to the efficacy of a 0.00% BAC for all workers, Mr Simpson asserted that the relationship between alcohol or drug blood levels and impairment is complex. It is an assumption that a BAC of 0.02% does not result in significant impairment. This is generally regarded as an average size male, who consumes 3 or 4 standard drinks over 2 hours, is likely to have a 0.02% to 0.04% BAC. However, in his experience most workplace testing occurs at the commencement of work and early in the morning. Unless the person is a morning drinker, a positive result in the morning is most likely due to a heavy drinking session the night before. Such a person is likely to be substantially impaired for the whole day, even if the person is likely to be alcohol free within one or two hours. This can be estimated by assuming that for an average male:

•  one standard drink will increase BAC by 0.02%; and

•  the body processes alcohol per hour to lower BAC by the same amount.

Extrapolating further, if a person who started drinking at 6pm would eliminate at least 10 standard drinks between commencing drinking and arriving at work at 6am the next morning. When the alcohol still in the body is added, the person would have to drink approximately 14 standard drinks (2 x 750ml bottles of wine or 14 x 30ml shots of spirits) to register a BAC of 0.04%. The average female eliminates about 2/3 of a standard drink an hour.

[184] Mr Simpson said that there is clear evidence of alcohol hangover effects in the experimental literature. He cited a 1990 study of pilots which showed the effects of moderate alcohol consumption can last even after the alcohol has left the system. Mr Simpson referred to another study in 2018 (Gunn et al) where after a single episode of heavy drinking, starting when BAC was close to zero, psychomotor skills, short and long-term memory and divided attention were likely to be impaired.

[185] Mr Simpson also referred to the alcohol impairment effect through its impact on sleep. Large amounts of alcohol consumption are likely to produce serious fatigue, even after 8+ hours of sleep. This is because alcohol changes the quality of sleep (reduces deep sleep and/or rapid eye movement (‘REM’) sleep). These sleep changes affect physical and psychological recuperation.

[186] For all these reasons, Mr Simpson believed that Endeavour’s proposal for a 0.00% BAC level for all workers to be appropriate.

Statement of Dr Michael Robertson

[187] Dr Robertson addressed the evidence of Endeavour’s expert and lay witnesses. In 25 years’ experience as a pharmacologist and forensic toxicologist, Dr Michael Robertson has assigned, supervised, performed and certified hundreds of toxicological analyses. He is a qualified trainer in the workplace collection and testing of breath, urine and oral fluids in compliance with the relevant standards. Dr Robertson was asked to provide his opinion on random oral fluid testing and random urine testing and to comment on the expert reports of Dr Lewis, Professor Christie and Mr Simpson.

[188] It was Dr Robertson’s view that urine and oral testing complement each other in so far as the window of detection. Each method has well understood strengths and weaknesses. Oral testing aims to detect recent use of drugs ingested in the hours before ingestion, when acute effects, including impairment, may be present. Urine testing detects both recent use (some drugs detected within an hour of use) and past use (longer than a day). In the latter, material impairment has ceased, but the drug may also be detected for a number of days, or sometimes more than a week. Depending on the drug, it is not possible to identify when the drug was used. This means that if recent use is more important than ‘any use’, oral fluid is more useful and vice versa. Dr Robertson added that neither method is ‘perfect’ per se, as issues arise such as detection avoidance and device deficiencies for both types of testing. Both testing methods do not look for all drugs, but usually only those identified in the Standards.

[189] Dr Robertson said that both methods can evaluate the presence of commonly used legal and illegal drugs, including cannabis, methamphetamine (speed or ice) opioids (heroin, codeine and morphine) and cocaine. Urine testing includes benzodiazepines (Xanax, Valium, Ativan), oral fluid does not, and oral testing includes oxycodone (Endone, OxyContin, Percocet) and urine testing does not. Dr Robertson believed cannabis and methamphetamine are the most commonly detected illegal drugs in safety critical worksites.

[190] Dr Robertson expressed his view as to the benefits and detriments of oral and urine testing. He said that urine testing requires privacy for collection. It is therefore more open to adulteration (e.g. large intake of water) and substitution of samples. Oral collection does not require a designated location. However, collection may be complicated by a dry mouth, rinsing or being tainted by other food or liquid intakes, either intentionally or otherwise.

[191] In summary, Dr Robertson believed a well-managed random drug testing program with urine collection is the most difficult to manage simply due to the absence of observation.

[192] In dealing with the testing technology, Dr Robertson said that both urine and oral testing, using immunoassay technology, have similar issues with false positive and false negative results. Dr Robertson disputed Dr Lewis and Professor Christie’s reference to the onsite cut-off for THC as 15ng/mL and an impairment window of 4-6 hours. He claimed that the THC cut-off in the oral fluid standard is 5ng/mL and the 15ng/mL cut-off relative to immunoassay testing for cannabinoids. This distinction was important because the current technology not only detects THC but its related compounds, such as metabolites and other cannabinoids present. This means a non-negative result occurs for cannabinoids, whether the actual concentrate of THC may be well below 15ng/mL.

[193] Dr Robertson referred to the studies cited by Dr Lewis and Professor Christie to draw a conclusion that the THC level of 15ng/mL is too high to detect cannabis use 4-6 hours prior (it should be closer to 15ng/mL). Dr Robertson said that other studies suggest that the THC concentration in the period 2-9 hours is 18.7ng/mL and at 4 hours the average fluid THC concentration was approximately 50ng/mL and at 6 hours 10ng/mL. These studies suggest THC at 4 hours is higher than 15ng/mL and between 10-15ng/mL at 6 hours.

[194] Another review (Lee and Huestis) found THC concentrations rapidly decreasing within the first 1-2 hours and more gradually after that; for example, THC concentrations initially may exceed 1000ng/mL, then below 50ng/mL by 6 hours, to below 10ng/mL within 22-24 hours.

[195] Dr Robertson believed that the suggested cut-off of 5ng/mL was based on publications relating to oral ingestion and not smoking of cannabis. Further, individual variations are largely due to the performance of historic devices. Dr Robertson accepted that wide variations appeared in the documented studies. However, this may be contributed to by oral contamination post inhalation. Dr Robertson noted that there are also variations in opinion as to the period of intoxication. Some suggest acute intoxication is four hours or less. Most effects return to base line within 3-4 hours, but divided or complex tasks may display decrements up to 24 hours after use. Most agree that performance impairment after THC was usually highest in the first hour and declines to baseline after use.

[196] Dr Robertson disputed Dr Lewis and Professor Christie’s criticisms of historic oral fluid devices. As to the number of false results, collection procedures and recovery etc. he noted that urine testing devices have similar issues. However, the current Standard now requires all devices to conform to strict criteria and verification testing. Therefore, reference to past devices is not relevant. Dr Robertson believed that if an oral fluid device is performing correctly, it will detect cannabis use during the first 1-2 hours and in the majority of people at 6 hours, given the technology used is detecting THC, as well as other related compounds.

[197] Dr Robertson explained that drugs circulated in the blood at relatively low concentrations when detected in urine. Generally, concentrations in oral fluids will parallel those in the blood and will remain detectable in urine after leaving blood. Therefore, the window of detection in oral fluid is typically shorter (up to 24 hours) relative to urine detection of up to 2-4 days, and when levels are undetectable in blood and oral fluid. Dr Robertson suggested that time of use is important to possible impairment and this is better facilitated by oral fluid testing. He acknowledged that neither testing can prove impairment in isolation. He said a urine test simply confirms that the individual had been exposed to the drug in previous hours or days. Dr Robertson agreed that either method is a deterrent mechanism. They are complimentary techniques each with strengths and weaknesses which should be used in combination with other initiatives such as education, awareness, building a better health and safety culture and fatigue management. Either method should be viewed as a deterrence, not a detection mechanism.

[198] Dr Robertson addressed a number of matters in Endeavour’s witness evidence as follows:

Statement of Mr Pitman

•  Dr Robertson disputed Mr Pitman’s claim that oral fluid detection does not detect a number of drugs including ecstasy, amphetamines, benzodiazepines and some opioid based medications. He noted the current standard for oral testing targets more opioids than the urine standard.

•  Both testing methods result in false negatives, which is dictated by the quality of the device, rather than the method of testing.

•  Reduced workforce performance is possible in the days after use, but is more likely to be due to fatigue and fatigue management.

[199] In respect to the proposed AODP (s 5.2.2.1) it is not clear how such results are managed when an onsite oral screening test results in a non-negative for one drug, then a secondary screening test detects a different drug(s). He noted that oxycodone is not detected in urine and its misuse would be undetected, if relying only on urine testing. It was Dr Robertson’s opinion that the same method of testing should be used for both the screening test and the confirmatory test.

[200] The proposed AODP requires urine only testing for cause or suspicion (5.2.2.2). Dr Robertson said that oral testing identifies recent use, which is more likely to result in concerning behaviours than drugs which might be detected using urine testing days after ingestion, where impairment will not be visibly obvious. Similarly, the effectiveness of oral testing in respect to recent use is greater for post incident testing than urine testing (s 5.2.2.3).

Statement of Dr Lewis

[201] Dr Robertson rejected both Dr Lewis and Professor Christie’s general view that detection of benzodiazepines in oral fluid is difficult and urine is preferred. The difficulty arises in onsite testing, but not in laboratory testing. If a concern exists, the oral fluid sample can be submitted to the laboratory for sensitive analysis in accordance with the Standard.

[202] Dr Robertson argued that oral ingestion of cannabis in food stuffs is a known deficiency with oral testing; however, as he previously outlined both methods have well understood collection and detection limitations.

[203] Dr Robertson referred again to Dr Lewis’ views about the inadequacies of onsite testing devices. He said that to be compliant with the current Standards, all devices must be compliant and verified. An organisation which used unverified devices (oral or urine) would not be standard compliant. Dr Robertson said that with the advent of new and more sophisticated technology, the majority of medical/legal testing now uses single instrumentation concentration i.e. LC-M5. There is no longer a requirement to use two different techniques, so long as sample error is mitigated by requiring two separate samples of the specimen.

[204] In respect to Dr Lewis’ concerns with oral fluids being masked or adulterated by collection pads , buffer solutions or other materials in the mouth, Dr Robertson said that there are many more opportunistic techniques for masking or diluting urine samples, such as adding compounds post collection, synthetic urine or prosthetics.

[205] Nevertheless, Dr Robertson concurred with Dr Lewis in respect to his general comments regarding the detection of cannabis in urine, although very recent use of cannabis would not be detected in urine until about an hour or two after use. Dr Robertson said a single isolated test (the most common) cannot determine the presence of a drug from recent use or past, historical use. Sequential testing might do so, but it is not clear whether this is Endeavour’s intention.

[206] Dr Robertson agreed with Dr Lewis that urine is the most suitable means of testing for cannabis use, if time of consumption or impairment is not relevant. Oral testing is most suitable for testing recent use and therefore acute impairment.

[207] As to the 50/50 random testing proposal, Dr Robertson noted that with urine testing using an external provider, the collection facilities will be visibly onsite for some hours, giving the employees more opportunity to mask, adulterate or substitute their urine. In Dr Robertson’s experience, no testing agency has ever raised the simple use of pseudoephedrine as a means to dry out the mouth and preventing an oral fluid sample being collected (as Dr Lewis suggested).

[208] Dr Robertson agreed that neither oral nor urine testing can determine impairment. While it is possible that residual impairment in some individuals, under some circumstances, may occur for an extended time, neither method is able to identify residual impairment, such as withdrawal symptoms. Dr Robertson rejected Dr Lewis’s interpretation of the Logan paper concerning methamphetamine impairment being the greatest when urine concentrations are low. This misrepresents a subset of the test subjects who were profoundly impaired from lack of sleep and exhaustion, when concentration would be low. Dr Robertson said he could find no evidence to suggest there would be a high probability of some degree of residual impairment if MDMA was detected 48 hours after use.

[209] In respect to Dr Christie’s evidence as to BAC levels, Dr Robertson opined that in the Moskowitz and Fiorentino article, it was noted that in some people low concentrations of alcohol may improve some tasks, but may impair other tasks, and may not lead to accidents. Most studies demonstrate that it is difficult to establish when impairment becomes significant. Studies of pilots indicate the first apparent concentration impairment at 0.001%, while other studies note impairment above 0.03%. Dr Robertson noted that it is notorious that the effects of alcohol depend on a variety of factors such as:

•  amount consumed;

•  speed of consumption;

•  a person’s age and gender; and

•  the degree of a person’s habit.

[210] Dr Robertson said that most researchers consider less than 0.03% impairment as ‘subclinical’ or ‘not present’. He believed the general consensus was that material impairment of some kind, such as decision making, reaction time and judgement, occurs at concentrations above 0.03% in some people.

[211] Dr Robertson rejected Dr Christie’s opinion that oral fluid is not suitable for detection of benzodiazepines during periods of impairment. It is not clear what Dr Christie meant by periods of impairment. Benzodiazepines may lead to impairment when first using the drug or soon after ingestion, but if the doses are altered, or withdrawn, there is no way of determining these factors. If any individual has been using benzodiazepines for many weeks, impairment will subside. Thus, the more accurate statement is that not all benzodiazepines can be detected by currently available onsite devices, even when taking recently (laboratory testing can do so).

[212] Dr Christie did not interpret the Standard correctly when he said the recommended standard was a THC cut-off of 15ng/mL, above international recommended levels of 5ng/mL (which provide a reasonable index of the likelihood of impairment). However, 5ng/mL is the THC cut-off in the Standard.

[213] As to the efficacy of urine testing, Dr Christie supports Dr Lewis’ opinion which Dr Robertson has previously addressed.

[214] In respect to random testing effectiveness on detection and impairment, Dr Robertson said the commonly prescribed opioids and sedative benzodiazepines ‘may’ have profound effects on skilled performance. However, the simple use of the drugs does not cause such profound effects and in many cases, there is little adverse effect, unless misused. Drugs such as oxycodone are regarded as significant drugs of misuse, which is not part of urine testing.

[215] In respect to Mr Simpson’s report, Dr Roberson has no specialist knowledge of the psychological components of deterrence and could not comment. As to Mr Simpson’s conclusion going to the reduced road toll following the introduction of RBT, he believed mandatory seat belts were also a factor. Therefore, he did not believe that it could be determined what contribution RBT played in reducing the road toll.

[216] Dr Robertson believed that Mr Simpson’s reference to a number of pharmacological parameters and generalisations in respect to drug detection times, accuracy and performance of devices and hangover effects of drugs and alcohol to be outside his field of expertise.

[217] All the experts called by Endeavour responded to Dr Robertson’s evidence.

Expert response evidence

Mr Peter Simpson

[218] Mr Simpson principally criticised Dr Robertson for not providing a full picture of the empirical evidence (particularly from the Rosita and Druid studies), regarding the relevant sensitivity and specificity of saliva tests in respect to the rates of true and false positives and true and false negatives. Further, he did not provide any empirical evidence to counteract these concerns.

[219] In commenting on his specific evidence, Mr Simpson said there was ample and unchallenged evidence that the introduction of RBT in NSW in 1982 had a dramatic impact on fatal road accidents. One study (Homel et al) reported a 48% drop in the first two months of RBT’s introduction and a 24% decline sustained for five years. As there were 12% fewer accidents for every 1000 drivers tested, RBT enforcement was increased from 1987. The NSW Government Centre for Road Safety in 2017 stated:

‘Drink driving is a factor in about one in every seven crashes in NSW where someone is killed. Random breath testing started in 1982. Since then, trauma from fatal crashes involving alcohol has dropped from about 40 per cent of all fatalities to the 2017 level of 15 per cent.’

[220] Mr Simpson took particular umbrage with Dr Robertson’s criticisms of his pharmacological and toxicological expertise. Mr Simpson had understood the criticism was directed to the Walsh, Rosita and Druid studies. Agreeing that he does not have pharmacological knowledge to evaluate the methodology of the studies, he had assumed they were pharmacologically and methodologically sound given:

•  their publication in peer reviewed sources;

•  the evident lack of published criticism as to their methodology; and

•  Dr Robertson’s apparent acceptance of their findings, given he did not attempt to dispute their accuracy or validity in his evidence or in his response to mine.

In the result, Mr Simpson believed it was well within his competence as a psychologist trained in statistics, decision theory and experimental methods, to review these studies and provide expert advice to his clients on their implications.

[221] Mr Simpson addressed criticism of his calculations of approximate clinical consumption by stating it was a ‘relatively simple matter’. The amount of time it takes for the body to process alcohol depends on a large number of factors and includes:

•  ‘Gender

•  Age

•  Body composition

•  Health

•  Genetics

•  Time since last meal

•  What the alcohol was mixed with

•  Medications or other drugs’

Source: Addiction Centre

[222] Further, the general advice is that men process out approximately one standard drink per hour and for women it is approximately two thirds of a standard drink per hour.

[223] Professor Christie directed his comments primarily to points in Dr Robertson’s report he found misleading, ambiguous or he strongly disagreed with.

[224] Professor Christie said that while oral fluid testing aims to detect recent use, the sensitivity of oral testing for some drugs is poor, meaning testing will not detect drug use during impairment periods. Accordingly, he disagreed that recent use is more important than ‘any use’ (Dr Robertson). He rejected the view that urine testing is ‘easy to evade’. There are strict integrity issues with current technology which minimises risk of evasion, substitution or tampering. It is extremely unlikely a person could prepare themselves daily to avoid random testing.

[225] Professor Christie mentioned oxycontin (Endone etc.) can be detected by urine screening using the current cut-off levels, although sensitivity is variable. Mr Simpson failed to mention that drug concentration in oral fluid can be significantly affected by rinsing the mouth, drinking, eating or using mouthwash for up to 30 minutes before a test.

[226] Professor Christie rejected the view that the sensitivity, specificity and accuracy of oral fluid and urine tests are the same because they use the same technology. This is incorrect as oral fluid tests yield significant rates of false positives and false negative rates, than urine testing.

[227] Professor Christie rebutted Dr Robertson’s comments concerning the cut-off levels for THC levels. He maintained that 15ng/mL cut-off is too high to be considered as accurate during the impairment period. Professor Christie said it was misleading to cite a single example to suggest that THC levels in oral fluid are above 10ng/mL six hours after smoking. This assertion ignores the bulk of the scientific literature. It is also misleading to quote averages without considering range. In a study of subjects with heavy dosages, some subjects would be expected to be detected according the Standard, but half would not. The failure to detect rates could be as high as 50%. Further, using averages (mean or median) is inappropriate because the number of subjects in a population (usually about half) must have levels below the average. This means there is a large unacceptable risk of failure to detect use using periods of impairment.

[228] Professor Christie considered that the evidence of impairment 24 hours after cannabis use is questionable, but there is no doubt, impairment occurs for more than 6 hours for some measures of performance in high-risk environments, particularly after high doses of cannabis. Nevertheless, there is consistent evidence of adverse effects from long term cannabis use for much longer than 24 hours after cessation of use.

[229] Professor Christie understood that many oral fluid testing devices on the market continue not to meet the recommended cut-off of 15ng/mL and this situation has not changed in recent years (Gjerde et al, 2018). The widely considered best performing device, Drager Drug Test 5000 (used also by NSW Police) was still found to have very high rates of false negative results for THC ranging from 20-70%. Testing for other drugs also performed poorly.

[230] For these reasons, Professor Christie strongly disagreed with Dr Robertson that if a device is performing correctly, it will detect cannabis use during the acute intoxication phase (1-2 hours) and in the majority of people at 6 hours.

[231] Professor Christie rejected Dr Robertson’s view that reduced workplace performance after drug use is possible, but it is more likely to be associated with fatigue. If this is intended to infer sever hangover effects are only fatigue-related, it is wrong, particularly for amphetamine-like stimulants. He emphasised the high probability of failing to detect drug use during periods of impairment.

[232] Professor Christie said it was misleading to suggest that alcohol impairment tests for pilots in flight simulators was not relevant, as very low concentrations of alcohol can impose cognitive demands on a subject, particularly involving divided attention tasks. To suggest some tasks are unaffected by alcohol concentrations of up to 0.07% ignores the severity of risk, depends on a task and establishes the reason as to why some industries have set 0.00% BAC levels for specific groups and learner drivers have zero BAC requirements. Professor Christie said it would be wrong to consider impairment at 0.03% BAC as ‘substantial’ or ‘not present’ for persons involved in high-risk, high cognitive demand tasks, even if driving a motor vehicle in the general population has a cut-off of 0.05%.

[233] As to Dr Robertson’s opinion on benzodiazepines, Professor Christie said that although impairment may be minimal for clinically prescribed doses over many days or weeks, it would not apply to occasional dosages or misuse. Benzodiazepines remain the most commonly impairing drugs used in the population. Professor Christie strongly disagreed that the greatest impairment for benzodiazepines is typically within a few hours. He maintained that within a few hours of ingestion, impairment of psychometric and cognitive function is severe and remains at significant levels for more than 12 hours after ingestion. Professor Christie also rejected Dr Robertson’s opinion that all benzodiazepines can be detected by all oral fluid devices, even when taken recently. Professor Christie said that of course, laboratory testing can detect benzodiazepines at low concentrations, but this ignores the fact that the sample does not get to the laboratory if it is undetected at site (as is likely). A cut-off level of 5ng/mL in the laboratory is not relevant to the cut-off level for onsite screening devices.

[234] Lastly, Professor Christie restated that high doses of codeine and therapeutic doses of other prescription opioids, produce very significant impairment of psychometric function. The only circumstance for which clinically used opioids produce no significant impairment is in individuals using regular and stable clinically directed doses.

Dr John Lewis

[235] Dr Lewis made some general comments as follows:

[236] Urine testing has the advantage of routinely detecting drugs within the benzodiazepine class; however, their concentration is too small to be detected by onsite screening devices. Urine tests identified recent cannabis use and up to six hours after use and longer periods where the person is a chronic user. Oral fluid testing will fail to detect oral consumption of cannabis because of the rapid metabolisation of the drug after consumption.

[237] In contrast to oral testing, urine testing can provide useful information as to the frequency of cannabis use. Further, it is unknown how many existing oral fluid testing devices, comply with the current new Standard. By contrast, there are numerous screening cups verified to comply with AS/NZS4308:2008. Dr Lewis observed that under this Standard a client may request testing for oxycodone and any other drug. The ability to do so is referred to in various sections of the Standard, particularly going to privacy concerns. Dr Lewis addressed Dr Robertson’s comments concerning the propensity for an individual to adulterate a sample or substitute it. It would be highly unlikely a person would be so prepared on the off chance that they may be randomly tested. ‘Water loading’ can occur, but can be detected by creatine testing, as included in the Standard. Dr Lewis agreed that both methods of testing cannot eliminate cheating and avoidance, but this will depend on the competency of the collector and adherence to the Standard.

[238] As to the 15ug/L cut-off for THC, Dr Lewis agreed there is a degree of cross relativities of other cannabinoids to oral fluid immunoassay techniques and the amounts of other cannabinoids in oral fluid is miniscule. Dr Lewis said that the current 15ug/L cut-off for THC in oral fluid will identify some users of cannabis, but it is too high to identify the majority of infrequent users, especially during the latter period of acute impairment. One study Dr Robertson had cited found half the subjects had oral fluid levels of THC less than 10ng/mL at 6 hours after smoking cannabis. Existing screening cut-offs would not detect these subjects. A second study he cited involved chronic users. A further study Dr Robertson cited gave median concentrations at 9.4 ug/L at 6 hours, meaning half the subjects recorded less than 9.4ug/L and would not be detected by existing oral fluid tests. As acute impairment could last for up to six hours, these subjects would not be detected during this period.

[239] Dr Lewis agreed with Dr Robertson that once a drug left the blood it was unlikely to be detected in oral fluid, but may remain detectable in urine. This is the very reason why urine testing is the preferred method for detecting recent drug and possible chronic drug use and the associated hangover impairment effects or subtle cognitive impairment.

[240] Dr Lewis said that Dr Robertson’s opinion that the detection window for drugs in oral fluid is up to 24 hours, does not disclose that neither THC nor benzodiazepines can be detected in this period and does not say whether existing onsite devices can detect drugs for up to 24 hours. Further, Dr Lewis said Dr Robertson did not discuss impairing effects, such as fatigue, depression and anxiety of cannabis, cocaine or methamphetamines, that can occur days after use. An extended period of detection can alert employers to the possibility of injury to persons who may be suffering from hangover effects after recent drug use.

[241] As to benzodiazepines, Dr Lewis said:

•  employers would not know to request testing for benzodiazepines;

•  it was incorrect that benzodiazepines such as Valium (diazepam) can be detected by oral fluid testing. The Smink et al study found only 1% of the drug in the blood after diffusing into saliva. This would not be detected in oral fluid testing, but would be readily identified in urine. Further, it was Dr Lewis’ experience that many of the testing providers opt not to seek accreditation for onsite devices which may fail and simply obtain accreditation for collection and dispatch purposes only.

Dr Lewis added that simply repeating the same test in the laboratory when it is not performed onsite, has no merit and is ‘very bad science’. He cited the US Draft Standard for Identification in Forensic Technology which states:

‘Repetition of the same method does not earn additional points towards the total needed for identification’.

[242] Dr Lewis took issue with Dr Robertson’s comment about urine testing only identifying ‘historical data’. In his experience, historical data includes a wider detection period of recent or past (historical) drug use. This includes data of detection outside the immediate period of acute impairment when the aftereffects from irregular and frequent use can occur. Further, interpreting sequential urine tests can identify regular, chronic or infrequent use and assist employers as to the severity of the risk a person may be in the workplace.

[243] Dr Lewis accepted that a urine concentration does not, in and of itself, determine frequency of use, dose or time of use, where there may be thousands of ug/mLs identified. However, it will certainly imply regular or chronic use. Occasional use of amphetamines or cocaine does not produce urine levels in the thousands of ug/mLs. In 2006, he had noticed in the North Sydney/Central Coast area, a dramatic rise in urine concentration of methamphetamines correlating to a sudden increase in the use of ‘Ice’.

[244] Dr Lewis said that urine testing will identify very recent use and risk of impairment. A person might also display other physical indicators – red eyes, slow speech etc. which may be identified by management. Dr Lewis said there was evidence that:

•  users of methamphetamines do suffer impairment days after use; and

•  there is a degree of impairment after 48 hours of MDMA use, such as impaired attention and depression.

Oral evidence of experts

Dr John Lewis

[245] In further evidence in chief, Dr Lewis described his voluntary role as an independent assessor of Australia’s only body responsible for assessing a laboratory’s competence in respect to drug testing in compliance with the relevant standards – The National Association of Testing Authorities (‘NATA’).

[246] Dr Lewis also expounded on his statement that ‘neither oral nor urine testing can determine impairment.’ What is sought to be measured is the risk of impairment, rather than impairment itself. There are many forms of impairment and may result in one feeling slow, fuzzy, drunk or fatigued. In essence, it is being affected by something that would impact on normal functioning. Impairment may be grouped in three ways: acute impairment is the immediate effect (euphoria) up to 2 hours from a stimulant; post euphoria or psychological effect, the hangover lasting from a few hours to 2-3 days and the more subtle slowness cognitive impairment, from long-term chronic use. Generally, each of these three phases of impairment will be different for different drugs.

[247] In cross examination, Dr Lewis agreed he had been a strong advocate and supporter of the merits of urine testing and had given consistent evidence in a number of Commission proceedings since 2011, including for Endeavour. Dr Lewis acknowledged that in his recent brief, he had not been provided with documents or information as to any changes in the work undertaken or the regulatory regimes applying to Endeavour employees since 2013. Nor had he been provided with the outcomes of the drug testing processes implemented since 2013. It was Dr Lewis’ opinion that the number of positives is only part of the jigsaw. A critical issue is how many false negative results are found. He agreed, however, that a large number of positive results might indicate a cohort of habitual or chronic users, and this would be useful information. Put simply, he believed that urine testing will detect most of the drugs, most of the time, whereas oral testing will detect some of the drugs, some of the time, because there are greater number of variables with oral fluids.

[248] Dr Lewis agreed that the 2006 Australian Standard for oral testing had been revised this year with new cut-off levels and a requirement for the accreditation of onsite testing devices. However, such accreditation is for the client. He was not suggesting Endeavour was not complying with the relevant standards, as they would be using verified devices. As to the proposed procedure, Dr Lewis could not recall if it had a different purpose to the existing procedure.

[249] Dr Lewis acknowledged that the differences in the two testing regimes, when testing for drugs such as ecstasy, methamphetamines and opioids are of lesser concern than cannabis and benzodiazepines, because of the smaller detection windows.

[250] Dr Lewis agreed that a person’s tolerance to cannabis effects will be variable according to potency, an individual’s physiology and time from consumption. He agreed with Dr Robertson that cannabis use impairment is greatest in the first hour or two and then declines rapidly. However, there are studies which support longer and shorter periods of impairment. He preferred ‘Ramaekers’ as it was premised on more realistic concentrates (potency 13%) than other US studies 1.75%) and showed acute impairments may last between 4-6 hours after consumption.

[251] Dr Lewis believed that the 15ng/mL THC cut-off in oral fluid will identify some users of cannabis, but is too high to identify the majority of users during the later period of impairment. This meant that if a person consumed cannabis 12 hours before an oral fluid test, it was unlikely to be detected. An infrequent user is not defined, it may be a weekend user or a user three times a week; the later might also be regarded as a regular user. In any event, frequency is not relevant to oral fluid testing. Urine testing may not detect immediate use, as the THC metabolite takes a while to get into the system and then be excreted.

[252] Dr Lewis was asked about his evidence in the Arnott’s Biscuits Ltd T/A Arnott’s v United Voice; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2018] FWC 1714 (the ‘Arnott’s Case’) He acknowledged that urine testing would produce a negative THC result if the person had not smoked the drug before and the test occurred within the first four hours of consumption. A regular user may test positive immediately after consumption. Dr Lewis said it was ‘implausible’ that someone would first use cannabis one hour before starting work. Dr Lewis believed that even for a chronic user, it takes about three weeks without further use, before no measurable urine reading. So, it is not true that realistic amounts of THC use are detectable months after intake. Dr Lewis accepted that unless a chronic user, urine testing will not detect cannabis in the critical period of impairment – the first hour or two. However, other physical signs may be observed such as red eyes and slurred speech. Dr Lewis accepted he was not aware of any study or training for managers as how to reliably assess impairment by observation – except for the US police force.

[253] In reference to Professor Christie’s evidence in the Arnott’s Case, Dr Lewis agreed that oral tests will almost always detect psychostimulants (methamphetamines, cocaine, ecstasy, MDMA, opioids) no matter whether the dose is low or high. Dr Lewis agreed that using either oral or urine testing for ecstasy, the window is between 24 and 48 hours. The mean detection time for cocaine in saliva was 8-10 hours (with a cut-off of 10ng/mL).

[254] As to prescription drugs, Dr Lewis said that there were conflicting views among psychiatrists as to concerns with prescribing Xanax (alprazolam). However, there is evidence the drug has been abused. As to Valium (diazepam), only 1% of the drug gets from the blood to oral fluid, meaning it is at such miniscule levels that present onsite devices cannot detect it.

[255] Dr Lewis was asked about his opinion in the 2012 case as to preferred BAC level of 0.02% or 0.05. At that time he was not asked if the level should have been lower than 0.02%. Dr Lewis said that there was no evidence that onsite testing, whether oral or urine, can detect for synthetic drugs. However, onsite urine cups can test for earlier synthetic drugs.

[256] As to impairment, Dr Lewis confirmed that impairment cannot be measured, but there is a risk or likelihood of impairment with recent drug consumption e.g. for cannabis it is the first one to two hours. Impairment risk will vary from drug to drug and depends on consumption levels.

[257] In re-examination, Dr Lewis agreed that the three stages of impairment risks are acute, hangover and chronic. What can be said is that THC levels in the thousands of ng/mL cannot be anything but very regular, very recent and chronic cannabis use with high-risks of impairment. Dr Lewis confirmed that acute impairment is the period of euphoric or immediate effect from consumption and up to 6 hours. The hangover effect is typically 24 hours later. Depending on the oral testing device and method of collection, detection should be found within 3-4 hours, but with a 15ng/mL cut-off, it is not certain how such THC levels can be found in the oral cavity after one or two hours. Urine testing will pick up the THC metabolite after 6 hours of use. During the hangover period, oral fluid cannot detect cannabis, but urine testing can. It will also detect psychostimulants, MDMA, opiates and benzodiazepines. Dr Lewis said that if oral fluid is the only testing, you would not have information of false negatives, so the information is extremely limited. Dr Lewis said that although the urine standard had not been updated since 2008, it remains ‘very relevant’. The standard is valid in terms of its purpose, the cut-off levels and the procedures.

Professor Christie

[258] In further evidence in chief, Professor Christie described impairment as the inability to perform tasks that one would normally perform and may extend into the psychological domain of risk taking or performing an inappropriate task or high-risk response. He agreed with Dr Lewis as to the various stages of impairment which differ depending on the drug and quantity consumed. Professor Christie described risk of impairment as the association between acute or persistent phase of impairment and the presence of a drug at a detectable level in body fluid, which may be quite low, or quite high, and will vary depending on the drug and method of testing. Professor Christie reiterated his evidence as to use of urine testing as complementing the failings of oral fluid tests. He stressed that urine testing will establish a high-risk of impairment with chronic users of cannabis. Oral testing in these circumstances will not give the employer an insight into the information necessary to manage this type of risk. Professor Christie added that ‘complement’ for failings can mean either or both methods of testing.

[259] In cross examination, Professor Christie said his main area of research expertise is pain management, but he has undertaken work for a number of companies in which he has consistently expressed his opinion that urine testing is preferable to oral fluid testing.

[260] Professor Christie was taken to his evidence in The Maritime Union of Australia v DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited [2014] FWC 1523. In that decision, Booth DP summarised the evidence in respect to oral testing for psychostimulants, MDMA and opioids in which he had said that oral or urine testing were both acceptable testing methods for these types of drugs. He said that although that was his general opinion at the `time, more recent evidence has produced greater accuracy of these tests in the field. His major area of concern in that case and this case was in respect to cannabis and benzodiazepines. He believed that even the most recent studies have found existing testing devices for oral fluids are less than satisfactory in terms of accuracy. Professor Christie acknowledged that the urine testing technology and the Australian Standards have remained the same since around 2008. It was ‘very mature’ technology at that time. He agreed that as far as oral fluid testing is concerned there was an Australian standard in 2006 and a recent new standard including New Zealand. There is also now a requirement for testing devices to be verified by an appropriate testing agency. This had been an issue in the past, and is separate to the Standards’ cut-off levels. Professor Christie accepted he does not have practical experience in respect to the devices or the verification process.

[261] Professor Christie explained his concerns as to cannabis and oral testing. In short, his concern is that detection levels may dip below that which would be detected before the end of the impairment. This could be up to 4-6 hours, but could be more for high dosages. He agreed the relevant studies use a relatively high potency dose. In the 2006 Ramaekers study it was said:

‘Impairment was most pronounced in the first 2 hours but was still measurable at six hours past dosing.’

No conclusions were drawn beyond 6 hours. This research and another comparison study have not been superseded since 2006.

[262] Professor Christie said that very recent cannabis use will not be usually detected in the first 1-2 hours, although cannabolic metabolites form very rapidly in the body, but there is a lag. Professor Christie said it be very unlikely to fail to detect recent cannabis use more than 4 hours after use. About 50% of tests would detect in the first 2 hours, but it depends on the dose. Detection is more likely in the 2-4 hours and unlikely after 4 hours.

[263] Professor Christie was also concerned with oral testing in relation to detection of cannabis in food stuffs, rather than smoking. He referred to an extensive study where large doses of oral cannabis were given over long periods of time and cannabis remained undetectable in oral fluid during the entire period. Professor Christie agreed to the following comments he made in the DP World Case:

•  A urine test detects a concentration for a longer period than the period of impairment and cannot reveal when the drug was ingested.

•  Detection in the first hour or two by a urine test is unreliable because of the reservoir of clean urine in the bladder.

•  Recent smoking of cannabis is best detected by an oral test.

•  Cannabis is one of the drugs that does not have a serious after effect.

•  The usual method of ingesting cannabis is smoking.

[264] Professor Christie agreed that his opinions have not changed since 2014, save for some evidence that serious effects may be evident in chronic cannabis users. Professor Christie believed the emerging international standard cut-off of 5ng/mL was not taken up in the Australian standard, because there is no device on the market that can meet that target. However, it is used by the NSW Police. Professor Christie said that in respect to the group of benzodiazepines which have a very low transfer to oral fluids, some drugs can be detected by oral screening devices, but their accuracy is poor. Other drugs simply cannot be detected at all by an oral fluid screening device. Professor Christie agreed that laboratory tests can easily detect low concentrations in oral fluids, but this is irrelevant because a negative onsite test will never reach a laboratory. He also accepted that in urine testing for benzodiazepines there is a high rate of false positives. This is because the sensitivity is very low, so the accuracy of the test goes down. He said there is always a balance between sensitivity to detect at a relevant concentration and the specificity of that test. There is a very low threshold for benzodiazepine in urine testing because of the likelihood of impairment. While he agreed that these drugs are largely prescribed by doctors, the Annual Australian Institute of Health and Welfare Survey reports widespread misuse and a significant increase in the people who say they misuse them. He accepted that Endeavour’s procedure proposes self-disclosure of prescribed medication which may give rise to an issue of work performance.

[265] Professor Christie could not recall if he had been told Endeavour’s current procedure was the result of arbitrated Commission proceedings between 2011-2014. He had not been informed as to any changes in the nature of the work undertaken by employees since that time, nor was he provided with the testing outcomes during that period. There had been no discussion with Endeavour about any changes in the work of employees since then. Further, he was not told that Endeavour, in the 2011 proceedings, had relied on expert evidence as to the appropriateness of a BAC cut-off of 0.02%.

[266] Professor Christie referred to the Moskowitz and Fiorentino review in 2000 and said that the review was the most thorough, systemic and authoritative review in the world in the field of alcohol research and impairment, which has not advanced in any significant way since. The study identifies the lowest BAC at which impairment was found and then when a BAC level in which 50% or more of tests indicate consistent impairment through a large range of tasks. The studies involved driving and simulated piloting and where impairments were reflected in most studies at 0.039%. The lowest BAC at which impairment was detected at 0.001% was in a flight simulator study involving traffic, weather, flight paths and radio communication, where multiple tasks are performed simultaneously.

[267] While Endeavour had not given him any work equivalent to a flight simulator task, he was told that some tasks were extremely high-risk, such as working at heights and with live lines.

[268] In re-examination, Professor Christie was pointed to the Moskowitz study where it was said:

‘A review of the literature provides strong evidence that impairment of some driving-related skills begins with any departure from zero blood alcohol content.

Professor Christie said the lowest BAC levels at which impairment is found applies to any demanding divided attention task, including emergency situations and driving. Even so, impairment is shown at most times with the study. 18 studies measuring the ability to divide attention were very sensitive to the effects of alcohol in the range of 0.005 to 0.010%.

[269] By reference to the DP World Case, Professor Christie opined that it would be extraordinarily unlikely to detect cannabis in urine after several weeks, in anything but the heaviest regular users.

[270] Professor Christie explained the differences between the screening tests cut of 15ng/mL and the 5ng/mL in subsequent laboratory tests. Laboratories use completely different and definitive technologies. He confirmed it was extremely unusual for companies to send negative tests for confirmatory testing, because it is so costly and would be inconsistent with most workplace drug and alcohol policies.

[271] Professor Christie believed that any device which is said to detect below 15ng/mL would have very poor accuracy in the field (50-60%) and most devices are not even sensitive to 15ng/mL. Most devices are validated on the manufacturers stated sensitivities or cut-offs.

[272] Professor Christie explained the design doses used in the ‘Ramaekers’ study. Two doses were used for an average male:

•  250 microgram per kilo – about 15mg THC (a moderate dose; 10mg would be considered a low dose producing impairment for 2-3 hours); and

•  500 micrograms per kilogram of THC (a high dose).

[273] Professor Christie could not say what the percentage of THC is found in cannabis regularly used in Australia.

Mr Simpson

[274] In further examination-in-chief, Mr Simpson said he also assists employers in monitoring and reviewing their drug and alcohol policies through collecting data, interviewing persons and observation. In his role as a psychologist, he manages persons with alcohol or drug problems in a workplace context by devising treatment and management programs to get them back into the workplace. This may take weeks, months, sometimes years. It requires a detailed knowledge of the impact and effects of different drugs on humans.

[275] In cross-examination, Mr Simpson agreed he has not worked as a toxicologist or pharmacologist, but he has academic qualifications in Physiological Psychology. During his 20 years’ work for the Western Australian Department of Education, he worked as a school-based psychologist and as a psychologist running administrative districts in the Department. Since then, he has been primarily involved in providing psychological services to companies through employee assistance work direct to individual employees. His business has about 5% private clients. Griffin Psychology does 24% of its business through Medicare. Through the EAP process, two thirds of referrals are initiated by the employee themselves and involve personal or family issues and are not identified to the employer (although the employer pays for the services). The remaining third is through workplace referral; the majority of which are initiated by the individual or a family member.

[276] Mr Simpson said that the methodological evaluation of a study requires subject matter expertise. Once that has been established the interpretation of statistical results requires statistical expertise and an understanding of experimental methodology. He has expertise in the latter.

[277] Mr Simpson said he had not said he found Dr Robertson’s report ‘extraordinary’. What he found ‘extraordinary’ was a lack of reference to the fact that both testing methods reveal false positives and false negatives, and there was no reference to their relative levels. Given Dr Robertson’s qualifications and experience in pharmacology and toxicology, he argued Dr Robertson was more across the scientific research as to the reliability and accuracy of oral testing devices. However, this was not his point (see above). Any statistically competent person can interpret results. Mr Simpson said his own views were not based on a single study, but on a number of published studies. However, he was not familiar with the Maskowitz and Fiorentino study on alcohol impairment.

[278] Mr Simpson said that he had developed a fatigue management program for Endeavour some years ago. In the present case, he was not provided with information:

•  on the work performed by Endeavour employees;

•  on the nature of Endeavour’s operations;

•  as to the current AODP being the subject of arbitrated Commission proceedings; and

•  on the outcome of alcohol and drug testing on employees in recent years.

[279] As a regular reviewer of company AODPs, Mr Simpson said the factors to consider include:

•  the testing facilities;

•  the effectiveness of education programs;

•  the results from tests in recent years;

•  any problems with testing for particular types of drugs;

•  any changes in the employer’s operations; and

•  any changes in the skills or work of the employees.

He has had experience with hundreds of workplaces (including energy providers) which have implemented AODPs. Many have similarities. One aspect of this was identifying persons with fatigue impairment. This has two aspects: identifying persons with fatigue issues and educating persons to ensure they minimise their fatigue. Four primary causes of fatigue are:

•  the amount of sleep;

•  the quality of sleep;

•  the time of the day (circadian rhythm issues); and

•  intensity of the work required to be performed.

[280] Mr Simpson accepted that his reference to acute cannabis use, concerns recent use where impairment may be two-six hours after use. He based his conclusions on his experience through individual referrals and education programs that most people who smoke cannabis the night before, will not test positive the following morning, through a saliva test. Mr Simpson said he was unaware of any study, and had not conducted any study, which considered the deterrent effects of oral fluid vis a vis urine testing or in respect to the 0.00% BAC vis a vis the current cut-off levels of 0.02%/0.05% BAC. His only reference was to an 1989/1990 alcohol and aviation study.

Dr Michael Robertson

[281] In cross-examination, Dr Robertson agreed that the AODP has a three-fold purpose:

•  to deter the use of drugs;

•  to manage risks in the workplace, where a person might have a drug or alcohol problem; and

•  to detect individuals who may be impaired and unfit for duty.

[282] Dr Robertson agreed with Dr Lewis and Professor Christie that both methods of testing (oral or urine) complement each other. Dr Robertson was on the committee which developed the recent revision of the Standard on oral fluid testing and he has been approached to do the same for an update of the urine standard.

[283] Dr Robertson explained the means by which persons can avoid drugs being detected in the oral cavity by diluting saliva for a short period – 10-15 minutes is required for nothing to be consumed which allows the drug to move back into the oral fluid before its collection. He agreed that both methods have some weaknesses in terms of detection avoidance. He agreed that having both methods on a random basis would be appropriate to deter or to avoid risk of avoidance of detection.

[284] Dr Robertson was taken to his evidence in the Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075 (‘Port Kembla Coal Terminal Case’) in which he had agreed that the greater chance of being tested, the greater the deterrence value. He had acknowledged that measures can be taken to address urine testing avoidance, such as substituting synthetic urines, tampering and assessing the level of creatine. He agreed in that case, he had said:

•  the uncertainty about the mode of testing assumes a greater significance, because if a person is uncertain about the type of testing, it becomes much harder, for instance, to come with the substitute urine strapped to your body or to take other measures to evade detection, if you don't know which technique might be utilised; and

•  a preferable approach having regard to deterrence and thwarting techniques to evade detection is to have an approach which utilises either urine testing or oral fluid testing on a random basis.

He maintained these opinions.

[285] Dr Robertson accepted that onsite screening tests will not detect benzodiazepines. He also accepted that different drugs will have different impairment periods, being the acute euphoric effect, the peak, then the phasing out. He accepted that in some people, the withdrawal (hangover) effect might last longer than the acute impairment period, as there is a range of variables.

[286] Dr Robertson’s emphasis on fatigue management arose from his opinion that the intent of oral drug testing is to focus on the period of profound impairment – the first few hours after use. He believed drug testing cannot detect hangover effects, such as moodiness or tiredness. Nevertheless, he accepted that for good reasons employers might decide to have more all-encompassing fitness for work regimes which might deal with concentration and risk to motor skills. Given that urine testing can detect use for some days, fatigue might be part of that. He did not necessarily agree with the emphasis in Professor Christie’s report on impairment effects over longer periods, as almost any drug and most prescription drugs will have an element of impairment. As to urine testing not being able to detect oxycodone, Dr Robertson clarified this by agreeing that it can be detected, if specifically requested. However, it can be detected by routine oral resting.

[287] Dr Robertson was referred to the 2015/16 Gjerde study. He understood that it was a comparison of blood versus oral fluid where a number of false positives and false negatives were identified. However, he said that it is generally agreed that oral fluid concentration and blood concentrations do not correlate.

[288] Dr Robertson was asked about the testing devices and the Standards. He noted that the urine testing verification, in accordance with the Standard, has been around for about 11 years. He understood that in terms of ongoing quality control, the device itself does not undergo another verification, but it is simply deemed fit for purpose at the point the verification occurs.

[289] As to the various studies dealing with THC concentrations after certain periods of time, Dr Robertson said that onsite devices are lacking for cannabinoids, that is THC and another 60-odd THC cannabinoids in cannabis. If he believed that the device detected THC at 10ng/mL it would be reasonable to assume a combination of cannabinoids above 10ng/mL. He said that studies have not been done to demonstrate the exact level of cross reliabilities. He believed that at 6 hours (the outer end of the acute impairment period) with a level of 10ng/mL there is a likelihood for detection of cannabinoids at 15ng/mL. As this was the average, at least half of the persons would be below 10ng/mL.

[290] As to a THC negative result below the cut-off, Dr Robertson agreed that it was more likely the drug would not be found above the cut-off (in the laboratory). He accepted that urine testing will pick up cannabis use within an hour and up to days or weeks after. The Australian Standard cut-off levels for urine testing will not be detected for infrequent users after a few days, but habitual users may extend to 10-15 days or longer. Dr Robertson said that with oral testing the period of relevant detection is between 4-6 hours after smoking. Dr Robertson accepted that reduced workplace performance is possible after two to three days. This is similar with most drugs taken infrequently. However, this did not necessarily signify a hangover period in all people. Fatigue may arise from lack of sleep, rather than the use of the drug per se. Depressed mood might also be apparent and both factors might impact on performance. There is always a question of how the employer interprets analytical information. Dr Robertson accepted that putting all the information together might give a more cohesive whole picture in managing a risk.

[291] In respect to an incident, an oral drug test will give a more recent indication of ingestion as a contributing factor, whereas urine testing only tells of use at some time. He accepted that the detection of a drug in urine some days from ingestion, might prompt a conversation as to fatigue or sleep deprivation as a factor in an incident.

[292] In respect to BAC levels and impairment, Dr Robertson agreed there may be some impairment between 0.00 and 0.02%, but what he looks for is material impairment affecting workplace performance. Dr Robertson agreed with Professor Christie’s reply statement concerning benzodiazepines and impairment. However, he disagreed with Professor Christie that with some drugs, impairment is more significant after a period of sometime (12 hours). He identified some cases, oxycodone for example, which is widely prescribed, without any significant impairment in a lot of people with moderate pain. He agreed, however, that the detection of oxycodone might prompt a conversation with the employee.

[293] In re-examination, Dr Robertson said that by directing a person not to put anything in their mouth for 10-15 minutes will reduce the prospects of avoidance and detection. He explained why this is so. Dr Robertson said that in his experience over 15 years, random testing is generally a deterrent by one or the other methods of testing, but not by a ‘blended’ approach as proposed here. He observed that such an approach might raise an issue for a procedure where an initial oral test detects a prescribed drug and a later urine sample identifies the presence of another illicit drug, used some days earlier. He asked how the disciplinary process would work in those circumstances.

[294] Dr Robertson explained the various causes of fatigue and how a fatigue management plan would work in identifying fatigue and its management as a safety risk factor in the workplace.

[295] Mr Shariff sought to clarify the question of what method of testing applies to onsite non-negative results and confirmation in the laboratory for oral testing. Dr Robertson said it depends on the devices, but usually another saliva sample is taken, and this is laboratory tested. However, it was not unusual (novel) for a confirmatory sample to be a urine test. He agreed that it was possible a false negative oral fluid test, might prove to be a false positive. Both can be conducted by a laboratory test of the oral fluid.

SUBMISSIONS OF THE PARTIES

[296] Both parties provided detailed written submissions which I have taken into account, and which were supplemented by comprehensive oral submissions from both Counsel.

For the applicant

[297] In oral submissions, Mr Shariff addressed a number of issues, including whether the applicant needed to demonstrate a compelling change in circumstances, the purpose of the applicant’s AODP, the methodology for random drug testing, the inclusion of a disciplinary procedure in the AODP and the BAC cut-off level.

[298] Mr Shariff addressed the standard that should apply to the determination of the present dispute. He drew attention to clause 34.4.1 of the Agreement, which provides that if a dispute remains unresolved after the parties have attempted to resolve the matter internally, an employee, union or the company may refer the matter to the Commission for the arbitration of the dispute. Mr Shariff said that the power to arbitrate the dispute was not confined and that the only statutory restraint on my power to arbitrate the matter is s 739(5) of the Act, which requires that a determination is not inconsistent with the terms of an agreement.

[299] Mr Shariff said that in resolving the dispute, the Commission is not confined to demonstrate compelling change/s to warrant a departure from the outcomes that had been decided in the previous decisions of Hamberger SDP and the Full Bench of the Commission. There is nothing in the relevant statutory provisions, or the relevant case law, which requires Endeavour to reach some artificial standard of significant, compelling circumstances.

[300] Mr Shariff submitted that the principles of stare decisis and res judicata do not strictly apply to the jurisdiction of the Commission and that to the extent they do, there are other considerations which may limit their application. Mr Shariff argued that, in any event, such considerations do not arise because the respondents did not rely on any jurisdictional impediments or res judicata arguments in their submissions.

[301] Mr Shariff drew attention to the views of the expert witnesses on the scope and purpose of the applicant’s AODP. He said that the experts were unanimous in respect of their views on the purpose of the procedure. The experts agreed that the purpose of the procedure was not solely on the detection of individuals who may present for work impaired by drugs or alcohol, but on the management of risk to health and safety.

[302] Mr Shariff cited the decision of the Full Bench in the Port Kembla Coal Terminal Case where at [66], the Full Bench said:

‘it needs to be emphasised that the policy concerns a random testing regime. Whichever method of drug testing adopted, employees attending for work will often not be tested. This means that some employees might be impaired by drugs or alcohol and not be detected. The real purpose of random testing is therefore to deter employees from attending work in an impaired state because of the risk that they might be detected.’

[303] Mr Shariff argued therefore that the primary purpose of the procedure should be understood as being about mitigating risks associated with employee drug use in a very broad sense. As he put it, if the goal of the procedure was simply about the detection of alcohol or drug use amongst the workforce, the random testing would be carried out every day widely amongst the workforce – this is impractical on a cost and logistical basis.

[304] Mr Shariff said that Endeavour’s interests in mitigating against risks associated with drugs and alcohol included identifying employees who were long term or chronic abusers of drugs or alcohol. This behaviour presents workplace risk that Endeavour needs to mitigate and is broader than simply identifying those who present to work impaired by drugs and/or alcohol.

[305] Mr Shariff put that the comparisons between the benefits and limitations associated with oral fluid and urine testing were misleading. The issue was not about which method was the best overall. He said that there were benefits of oral fluid testing, and that Endeavour was not planning to cease the use of oral fluid testing. The real issue was whether the introduction of urine testing for 50% of random tests would complement Endeavour’s random testing regime and aid the policy goal of reducing workplace risk associated with the use of alcohol or drugs. He said that it should not be thought of as oral fluid vs urine, but as a dual modality for random testing. He cited the view of the Full Bench in the Port Kembla Coal Terminal Case where the Full Bench pointed out that:

‘An additional purpose of random testing is to detect drug use by employees in order to enable PKCT to reduce and manage workplace risks associated with drug use. As we have already stated, neither test establishes functional impairment caused by drug use.’

[306] Mr Shariff argued that the benefit of dual modality random testing, that is adopting oral fluid and urine testing in equal proportions, is that it has the effect of mitigating against employees taking steps to exploit a weakness in the respective testing methodology. If employees do not know which method of testing will be used, they are less likely to be able to take steps to exploit the known weaknesses of a specific testing method. This had been the view of the Full Bench in the Port Kembla Coal Terminal Case, and more recently of the Commission in the Arnott’s Case. He noted that the arbitration before Hamberger SDP did not consider the prospect of a dual modality approach to random testing, as it was not raised at the time.

[307] Mr Shariff provided an undertaking that his client would restore reference to the disciplinary procedure to the proposed AODP.

[308] Mr Shariff drew attention to the recent negotiations between the ETU and Essential Energy, which resulted in a 0.00% BAC applying to workers at Essential Energy. He noted that whilst Essential Energy was in a different industrial context with different trade-offs likely to have been agreed during negotiations, he relied on Mr Currey’s admission that the work performed by employees at Essential Energy was similar to the work performed by Endeavour employees.

For the respondent Unions

[309] In oral submissions, Mr Gibian addressed a number issues, including what evidence was placed before the Commission during the dispute arbitrated by Hamberger SDP, the approach the respondent Unions submitted should be adopted in the present case, issues regarding departure from a prior arbitrated outcome and whether the applicant had met the consultation requirements under the enterprise agreement.

[310] Mr Gibian observed that the difficulties associated with having two different BAC cut-off levels (0.02% for high-risk workers and 0.05% for low-risk workers) was an issue before Hamberger SDP. The Senior Deputy President had rejected the argument that there was a need for a ‘one size fits all’ and that it was appropriate for the applicant to undertake a risk analysis of its workforce to identify jobs and employees who performed high-risk work. Mr Gibian said that the case the applicant ran in the dispute before the Senior Deputy President was the same argument put before the Commission in the present case; that is:

‘In practice, however, the likelihood of someone being in a position to cheat effectively when a test is conducted at random and with no prior warning, is in my opinion, relatively low … Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, it also has the disadvantage that it may show positive results 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 the actions were taken in their own time and in no way affect their capacity to do their job safely.’

[311] Mr Gibian submitted that at a ‘practical level’ the applicant should be required to demonstrate some justification for changing the procedure by way of a change of circumstances to justify departing from the outcome reached by Hamberger SDP. He said that this is because private arbitration is intended to finally resolve disputes between parties. It would be inconsistent with the nature of private arbitration for a party to be able to challenge the outcome, without some evidence of changed circumstances. In support of this proposition,
Mr Gibian cited the High Court decision of TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 at [77] where Hayne, Crennan, Kiefel and Bell JJ said:

‘If parties do go to arbitration and the arbitrator makes an award, the making of the award has legal significance in respect of the parties' dispute and their rights and liabilities. As the plurality in Dobbs said: "if, before the institution of an action, an award was made, it [the award] governed the rights of the parties and precluded them from asserting in the Courts the claims which the award determined" (emphasis added). In such a case, the arbitrator's award governs the rights of the parties because "[b]y submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them.’

Mr Gibian also drew attention to the judgment of Rares J in Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] FCA 659, in particular where His Honour said:

‘[25] It is important to appreciate that the statutory scheme under the Act has, as its central foundation, the premise that an enterprise agreement must include a term that establishes a procedure that allows either the Commission, or another person independent of the parties covered by that agreement, to settle disputes about any matters arising under it. The Act made detailed provisions for those disputes to be settled in a private arbitration either by the Commission or a third party. However, the Act also created limitations and consequences in respect of such settlements of disputes.

[26] Thus, the Parliament gave effect to a well recognised function of private arbitration when it authorised parties to enterprise agreements to appoint the Commission to act as a private arbitrator as well as providing for others to act in that capacity. The High Court had found previously that function was capable of being conferred on the Commission in statutory predecessors of the Act. Indeed, s 186(6) of the Act required that an enterprise agreement must have a dispute resolution procedure that allowed the Commission, or someone else independent of the parties, to resolve disputes. This demonstrated that the intention of the Parliament was that such dispute resolution be effective and operate with the incidents of a private arbitration.’

[312] Mr Gibian said the alternative view which was advanced by the applicant relied on an XPT-type approach, referring to the case of Australasian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188 (the ‘XPT Case’). That case involved consideration of intervention by arbitral outcomes in matters within managerial prerogative. Mr Gibian argued that here, the context is very different, as the arbitration of industrial disputes had historically involved the intervention of a decision-making body, irrespective of whether the parties consented to the matter being arbitrated. This was not analogous to the present dispute, as the applicant had willingly conferred authority on the Commission to resolve the dispute. At the very least, the Commission should have regard to the background to the current AODP, in that it was the result of an arbitrated outcome. Mr Gibian concluded this submission by putting that the Commission should approach the case on the basis that private arbitration is intended to finally resolve a dispute, with an ongoing matter such as an AODP. Any departure from the prior position should involve the applicant demonstrating the need for change. This it had failed to do.

[313] Mr Gibian argued that if there had been a large number of positive tests confirmed or evidence regarding a particular section of the workforce or issues regarding a particular drug, there may be a case for change; similarly, no such evidence was advanced here.

[314] Mr Gibian submitted that with regard to the introduction of a 0.00% BAC, the applicant placed heavy reliance on the fact that Essential Energy was introducing a new AODP with a 0.00% BAC and the Unions were not challenging the introduction of that procedure. The Commission would give no weight to this matter. Mr Gibian noted that there was no evidence before the Commission that explained why Essential Energy had proposed to introduce a new 0.00% BAC level for all staff, the basis on which it was proposed, or the reasons why the ETU had decided not to challenge its introduction. By way of analogy, Mr Gibian explained that it was unlikely Endeavour would accept that because workers at Essential Energy had received a 10% pay rise, it necessarily followed that workers at Endeavour should also receive a 10% pay rise. Mr Gibian put that the use of a lower 0.00% BAC to detect workers with a hangover was more appropriately dealt with through fatigue management, and that a worker may still be significantly impaired by a hangover, but present to work with a 0.00% BAC.

[315] On the issue of random drug testing methodology, Mr Gibian said that the expert evidence made clear that the greatest difference between oral fluid and urine testing was in the detection of cannabis and benzodiazepines. He noted that during his cross examination of Professor Christie, it was said that urine testing would ‘certainly’ not detect cannabis consumption in the first hour or two after consumption. Mr Gibian addressed concerns regarding the ability of oral fluid testing to detect cannabis consumed in food. He referred to the evidence of Professor Christie that 99% of cannabis is smoked and that the only positive post incident test at Endeavour Energy involved a 2016 motor vehicle incident where the worker indicated he had consumed cannabis in food, after receiving a positive oral fluid test. Mr Gibian argued that the scientific evidence regarding testing methodologies had not seriously changed between the decision of Hamberger SDP and the present, but to the extent that it had, it was in favour of the greater reliability and usefulness of oral fluid testing, as a result of the new Australian standard.

[316] Mr Gibian directed the Commission’s attention to clause 34.1.6 and clause 5.2.1 of the Agreement which require that dispute resolution and consultation be undertaken using the ‘interest based’ approach. He made the point that Ms Drakos had conducted a review, expressed a desire for change and received approval for that change from Mr Pitman before any consultation had even taken place. Further, he noted that a series of meetings took place before the Company disclosed it wished to introduce random urine testing, despite the fact that it had decided to do so before the commencement of the process. Mr Gibian said that no attempts were made during the ‘interest based’ consultation to seriously accommodate any of the employee interests put forward by the Unions.

CONSIDERATION

[317] It is obvious from the parties’ respective cases and the remedy Endeavour proposes in this dispute application, that there are essentially two principle issues to be decided; namely:

1. Whether the BAC cut-off level should be 0.00% for all groups of the Endeavour workforce; and

2. Whether Endeavour should introduce a ‘blended’ onsite random alcohol and drug screen testing regime.

[318] There are some associated issues with the proposed AODP about which I will refer to later; but it seems to me that the main focus of the very helpful expert evidence in this case was on the above two issues. To the extent there were differences in emphasis and approach in the expert evidence, it tended to focus on the issues surrounding the testing for drugs, other than alcohol. This is perhaps understandable given the longer history of alcohol influences on human behaviour and consequences for alcohol consumption affecting the workplace and employee performance.

[319] There continues to be emerging issues in respect to other drug detection as to testing reliability, accuracy and effectiveness, including more recent concerns with the increased use of synthetic drugs. In my view, there will continue to be advances and improvements on testing methods which will warrant ongoing reviews of employers’ AODPs to meet contemporary standards and community expectations.

[320] I do not intend to comment on the Union claims as to Endeavour’s alleged failure to properly engage in the consultation process, specifically that it was not based on the principles of ‘interest based’ bargaining, as required by the Agreement’s DSP; suffice to observe that the fact the ‘interest based’ bargaining approach was unsuccessful, appears to rest primarily on the firm positions adopted by both parties as to what each side sought from the bargaining; although it must be acknowledged that the Unions had a more flexible approach to bargaining, particularly in respect to a common BAC cut-off across the workforce. It is inescapable from Ms Drakos’ first recommendation to Mr Pitman, and while information was widely distributed and feedback sought, that the fundamentals of Endeavour’s position did not shift, with any suggestions from the Unions rejected, or adopted only if they did not detract from the fundamentals.

[321] On the other hand, the Unions’ steadfast rejection of ‘blended’ urine/oral random testing for drugs was more about philosophical objections, and firm Union policy, than practical common-sense solutions, based on the evidence. Moreover, the Unions’ position is inherently inconsistent, as it accepts urine testing for post-incident pre-employment testing and confirmatory testing.

[322] Lest there be any doubt, the Commission unreservedly accepts that Endeavour has the right to review and update its policies, including its AODP, to reflect contemporary industrial and/or community standards and expectations, new research and improvements in technology. However, as a model litigant and as the applicant in a dispute application under an agreement, what comes with that right, is an obligation and onus to explain and justify what circumstances have changed which warrant such major alterations to a procedure which has only recently been re-endorsed and published after comparatively recent and prolonged litigation on the same subject matter.

[323] Indeed, Endeavour has pursued its case in this dispute through the evidence of Mr Pitman and Ms Drakos almost entirely in an effort to persuade the Commission such a departure from the 2018 AODP has been brought about by changed circumstances. Even Endeavour’s own expert, Mr Simpson, who regularly reviews selected Company AODPs, agreed that when doing so, one should review and assess:

•  the results of recent testing;

•  the testing facilities;

•  the effectiveness of education programs; and

•  changes in workplace operations, including the type of work and skills involved.

[324] That being said, I found the quality and selective analysis of Ms Drakos’ review in recommending to Mr Pitman the changes to the AODP, to be less than satisfactory, and in some respects, simply wrong. While I do not suggest Ms Drakos was intending to be deliberately misleading, her source material was selectively used and did not represent, let alone justify, her conclusions that changes in general and population statistics were related to either Endeavour’s workforce profile, or its business activities, and that other changed circumstances warranted and justified her review.

[325] I intend to provide a number of examples:

•  Ms Drakos relied on the 2016 Household Survey to support her view that Endeavour’s workforce profile (the majority of which are males aged 25-69 years), were males in their 40’s who were the most likely age group to drink alcohol at risky levels, yet the Survey actually revealed a downward trend of 2%.

•  Seemingly important, but brushed over, was the further finding that persons in their late teens and early 20’s, are more likely to consume 11 or more standard drinks at least monthly and the age group 18-24 were most likely to engage in high level single occasion risks.

•  Ms Drakos’ conclusions as to the incidence of risky drinking, cannabis and methamphetamine use in remote areas, or very remote areas, as a reason for changing the AODP was simply wrong. Endeavour does not operate in these defined areas. This was a sloppy and unhelpful analysis. Moreover, 2016 general community statistics are not consistent with the actual dates over the last four years in respect to Endeavour’s employees.

•  Ms Drakos raised the identification of a risk problem in the Blue Mountains area, but had not included that view, or the basis for it, in any of the material put to Mr Pitman or the Executive Health and Safety Committee.

•  Most significantly of all, in my opinion, Ms Drakos had not undertaken any analysis of the age profile, role, location, educational or economic background of any of the Endeavour employees who had tested positive in recent years, to properly establish any correlation with the actual incidence of the small number of results and her assumptions and opinions based on alleged changes in the business and workforce profile.

•  Endeavour claimed that one of the changes which prompted the review was the change in ownership of the business in 2017. Given that both Mr Pitman and Ms Drakos agreed that the work performed by Endeavour employees had not changed since 2013 (and probably for years before that), it is ‘clutching at straws’ to see how the change of business ownership were grounds for a change in the AODP. This was a weak and flimsy argument for which no evidence was provided by Endeavour, save for the generalised view that the new management had taken a more focused emphasis on workplace safety. One might state the obvious – all employers should ensure a strong and ongoing emphasis on workplace safety.

•  Ms Drakos claimed that another of the reasons for her review was the productivity impact on the business when employees are required to be stood down for a minimum of three days, if a screening test returns a false negative result. Putting aside that Ms Drakos could not actually quantify the productivity impact, and that Mr Currey rejected Ms Drakos’ numbers of employees in this position (of ~60 false negatives, only around 38 employees were stood down), it must be said that it is Endeavour’s procedure which has these time limits. There would be nothing to stop Endeavour from ‘fast tracking’ these tests, if the productivity detriment was a real concern. Indeed, not all employees in this situation are stood down (30 over 6 years). In any event, given the numbers involved and the number of total employees, such a productivity impact, at best, could only be regarded as miniscule.

•  As to the suggestion that Endeavour is concerned at the psychological impact on employees who are stood down and awaiting confirmation, or otherwise, of a random drug or alcohol test, there was no evidence to support this assumption – medical or otherwise – from any affected employees. Endeavour chose not to bring evidence from any employee to justify this assumption. Again, the stand down decision is entirely a matter for Endeavour’s management. If this was a genuine concern, there would be nothing to prevent Endeavour from redeploying such employees to non-safety critical roles, while awaiting confirmatory results.

•  Endeavour has always worked with contractors on worksites of other businesses. There was no evidence of any confusion or difficulties which Endeavour had experienced in this area of alleged concern. Moreover, the Building Industry Code issue was not even correctly understood by Mr Pitman or Ms Drakos.

•  I am also troubled by the removal of certain processes for dealing with, inter alia, a first breach of the procedure by a warning or counselling and its replacement by the words:

‘Any breach, other than one involving prescription or over the counter medication used consistent with direction would be serious misconduct, by definition’.

•  Ms Drakos conceded these changes were not referred to in any of the presentations to Unions during the consultation. Her explanation was that the new wording was to provide flexibility to manage each instance on a ‘case by case’ basis. The proposal came from Ms Murison in People and Culture. In my view, this was a serious matter that had been slipped out of the procedure without any explanation, let alone consultation. It is my intention to restore the original procedure’s wording in this respect. My other concerns about omissions in the procedure, went to the transition period and self-testing which are also deleted from the proposal. There is little within the procedure as to how it is to be implemented. Ms Drakos’ cross examination on these omissions is telling. At PN2147-2149, she said:

‘It's not in the procedure, but that doesn't mean that we won't continue what we're already doing to support our employees.

…

Under the Responsibilities, we've continued to reinforce, through our health services team, around them providing education and training on the health issues and effects of alcohol and other drugs, as well as the case management of incidents, including providing assistance and support for workers seeking help to resolve alcohol or drug issues.

…

We've … identified here that breaches of this procedure will be considered serious and the matter will be referred to People and Culture for possible disciplinary action.’

•  Despite Endeavour’s presentations to Unions, I am concerned that there is a less than subtle change in focus from support and assistance to employees with drug and alcohol problems, to one which is focused on disciplinary outcomes. Nevertheless, I accept and welcome Mr Shariff’s undertaking that if the Commission recommended it, the omissions I have referred to will be included in the revised AODP.

•  Ms Drakos also justified her procedure change recommendation on a claim that there was a culture of ‘them and us’ between employees who are subject to two different BAC cut-off levels. When queried, Ms Drakos (as did Mr Pitman) conceded that no employee had ever directly raised such concerns with her. She had merely heard that certain unnamed Managers had talked about it. There was no evidence brought from any employee, or group of employees, about this perceived unhealthy culture. Moreover, basing such an opinion on second hand hearsay (even if it was fact) is not acceptable. This justification can be rejected.

•  Similarly, Ms Drakos asserted, with no evidence, that there was confusion amongst employees about which BAC cut-offs applied to them and confusion could arise if this were to become ‘blurred’ as to whether it constituted high-risk or low-risk work. I note the Unions’ survey had a small number of responders who believed that a 0.00% BAC cut-off applied across the board. Of course, there will likely be some crossover between employees who may sometimes work in low-risk and high-risk locations interchangeably, other conditions and obligations would apply in any event. In my view, this claim does not constitute a basis for change. Any confusion (if it arises) is better addressed through improved education, information dissemination and training.

[326] Without knowing the full details of the suite of health and safety policies, particularly going to the drug and alcohol policies of other electricity generators and supply companies, I do not consider that simply identifying the BAC cut-off levels of these companies, is a productive or helpful exercise. This must be a fortiori, when comparing these cut-off levels to other ‘high-risk’ industries, as my own experience in the mining industry’s approach to drugs and alcohol policies will attest. Even by doing so, none of the other four energy companies has a common 0.00% BAC high/low-risk cut-off.

[327] Endeavour’s current approach, on its own evidence, does not appear to be markedly out of step, or inconsistent with the cut-off levels at its comparable companies. I would add, to the extent that reliance is had on the policies of other unrelated high-risk industries, this might be an interesting academic exercise. However, care should be exercised to ensure that comparisons are truly ‘apples with apples’. There may be a range of individual and discrete factors which underpin the policies in other industries; including, inter alia, the relevant statutory and regulatory regimes in which they operate, historic experience, the relative ‘high-risk’ of one industry compared to another, and the sophistication and experience of the parties in the workplace.

[328] In any event, it is not at all apparent what the purpose of such comparisons are. It certainly has little, or nothing to do with productivity. If it is suggested it has something to do with competitiveness in the market, I do not imagine that any prospective customer would give priority to, let alone understand, the BAC cut-off levels for high and low-risk work at Endeavour when deciding to switch service providers.

[329] Finally, I also found particularly troubling, Mr Pitman’s exclusive reliance on what Ms Drakos told him and recommended to him, which I have earlier found to be less than satisfactory. On his own evidence, Mr Pitman did not conduct his own independent inquiries, seek advice or challenge Ms Drakos’ review or reasons for it. His evidence went not much further than acceptance of his and Ms Drakos’ own assumptions.

[330] For these reasons, in my assessment, Endeavour has not established any reasonable basis for changing its current BAC cut-off levels to 0.00% for the entire workforce. This is particularly so, given that all Australian State and Territory Parliaments (presumably, in recognition of prevailing community and scientific standards), have considered it appropriate to allow a licenced driver in charge of a vehicle (a dangerous weapon) to record a BAC reading of below 0.05%, without incurring any penalty. To my mind, there is little to differentiate a motor vehicle driver involved with multiple and simultaneous tasks to a low-risk Endeavour employee performing multiple and simultaneous tasks.

[331] To the extent there is a difference between high-risk and low-risk work, I am prepared to accept that a BAC cut-off of 0.02% for designated high-risk work, will unlikely have an impact on the performance of work and/or the safety of such workers and their colleagues. This appears to be consistent with the BAC cut-off (0.02%) for drivers of dangerous or heavy goods and public vehicles in New South Wales. Moreover, without demonstrating what material changes have occurred since Endeavour relied on the same expert evidence and carefully advocated the current BAC cut-off levels in the 2012-2014 Commission proceedings, there is no reason, let alone a compelling one, to depart from the existing cut-offs, so soon after they were introduced.

‘Blended’ urine/oral testing

[332] In carefully evaluating the expert evidence, I have nevertheless been persuaded that there is a lacuna in the current drug testing regime at Endeavour, in respect to the detection of cannabis and other drugs (cannabis being the most commonly used) in an employee’s system within a range of reasonably likely impairment periods. Such detection cannot be reliably addressed by the exclusive use of oral testing. Urine testing can detect recent cannabis use within the immediate euphoric period (one to two hours) and for a considerable period up to six hours after consumption. It will also detect chronic or long time use over an extended period.

[333] In addition, I accept that oral fluid testing is unlikely to detect oral consumption of cannabis, as it metabolises rapidly following oral ingestion. I also accept that urine testing, particularly by comparing a series of tests, will assist in identifying the nature of the cannabis use of the individual; be it infrequent (casual), frequent or chronic (regular). This goes to the appropriate support, counselling, rehabilitation and assistance mechanisms Endeavour should apply in addressing an individual’s particular cannabis use.

[334] Both Drs Robertson and Lewis agree that once a drug has left the blood, it will not likely be detected in oral fluid, but may remain detectable in urine. This is the very reason why urine testing should be utilised, at least on a ‘blended’ basis. It will detect possible chronic use which is likely to impact impairment and identify persons for whom specific and specialised support, counselling and rehabilitation are needed. This lacuna can be filled by the introduction of urine testing as proposed by Endeavour, on a 50/50 ‘blended’ approach.

[335] Based on the expert evidence consensus, I am also convinced that the 50/50 ‘blended’ approach will have a useful and material impact on one of Endeavour’s policy imperatives of acting as a deterrent to employees knowingly consuming cannabis on an irregular basis, when there is the unlikelihood of being detected with the current oral screening cut-off of 15ug/L. Dr Robertson (expert for the Unions) agreed a 50/50 blended approach would enhance deterrence and assist in risk management. Further, I note that a ‘blended’ approach was never put as an option in the 2012 case before Hamberger SDP (or since). I also accept that urine testing is also likely to produce a lower number of false negative and false positive readings than oral testing.

[336] On the other hand, all the experts agree that urine testing does not detect very recent smoking/ingestion of cannabis (THC). Critics of urine testing highlight this as a major deficiency of this method. However, in my view, this criticism is largely illusory when one considers:

(a) It is difficult to imagine that an employee (unless a chronic cannabis user who would be detected eventually) would use cannabis on a casual, occasional basis, within an hour of preparing for work, travelling to work, commencing work, and then being required to undertake a random drug test.

(b) Given that detection is likely between 1-2 hours after consumption, the timetable for detection is likely to produce a positive result, particularly as the levels of concentration are much greater in that initial period and gradually reduces between 2-6 hours after use.

(c) If the employee is a chronic, regular cannabis user, he/she will almost certainly be detected by a urine test, irrespective of the time periods between 1-6 hours, or for some days, after consumption.

(d) The objective of urine testing, as the experts all agree, is not to demonstrate recent use, but the ingestion of a prohibited substance in some hours, days, or even weeks, after ingestion. In other words, an employee could easily manipulate their frequent consumption of cannabis by working out the unlikelihood of being detected by oral testing, in the post-6-hour period from consumption. Such a person may go undetected as a regular user of cannabis for which there is a real risk to their own health and safety, and that of others.

[337] I do not find helpful, arguments at the margins, of the shortcomings with the respective urine/oral testing devices. In any event, the methods of collection are becoming increasingly more sophisticated and will continue to be so, given the recent requirement in the Standard for testing devices to be performance tested and verified. It seems to me that it would be the height of folly for an employer to commence, or continue to use unverified devices, making the employer non-compliant with the Standard and therefore likely to be subject to justifiable criticism and challenge by employees tested by such devices.

[338] I also accept that a person’s means to tamper with, or evade detection are greater with oral testing, than urine testing. Mouth rinsing, drinking or eating up to 30 minutes before a test (Professor Christie) are obviously easier methods of evasion, than substitution of urine samples in a random drug testing regime. That said, one should never underestimate an individual’s inventiveness to find ways to avoid or mask detection. Experienced collecting agencies are likely to be alert to any suspicious circumstances in this respect.

[339] It is also evident that urine testing is more likely to routinely detect benzodiazepines, than oral testing, because their concentration is so low as to not be detected by existing onsite screening devices. It is no answer that laboratory testing will detect certain benzodiazepines in saliva. This is an illogical proposition, as the sample will never get to the laboratory, if the onsite screening test likely returns a negative result, even though the drug might still be present.

[340] All of the experts agree that both methods of testing have their specific purposes, benefits and shortcomings and can be used to complement each other. Even Dr Robertson accepted that using both methods on a random basis would be an appropriate means to deter, or to avoid the risk of detection. In my opinion, no one testing method is demonstrably preferable to the other.

[341] Given these observations, it seems to me to make perfect sense to have a combination of random testing which will service as both a deterrent and a means to identify and manage risks, particularly by picking up chronic drug users where counselling and support should be a major priority for Endeavour. If one accepts (as Dr Robertson opined) that cannabis and methamphetamines are the two most commonly detected illegal drugs in safety critical worksites, and both oral and urine testing can detect these drugs in different scenarios, the question arises as to what method best meets the procedure objectives of acting as both a deterrent and ensuring the safety of the workforce and the individual. From the evidence, that seems to me, at the very least, to be oral/urine testing in combination.

[342] Using both testing methods will have significant advantages in achieving and extending the common objectives of a contemporary, relevant, appropriate and fair AODP to deal with drug use in the workplace.

CONCLUSION

[343] The parties are directed to confer in order to redraft the proposed AODP in accordance with my findings and conclusions in this decision; most notably that the proposed AODP should include:

1. Retention of the existing BAC cut-off levels for random alcohol testing of 0.02% for designated high-risk roles and 0.05% for all other employees of Endeavour;

2. Random testing for drugs by a ‘blended’ (random) method of urine and oral fluid testing, with an approximately 50/50 use of both random methods;

3. Confirmatory drug testing be by urine testing, following a non-negative oral fluid test;

4. For cause, post-incident suspicion, return to work and pre-employment testing for drugs, urine testing will be utilised;

5. The inclusion of those matters omitted from the proposed AODP and agreed to be included by Endeavour, particularly going to issues of:

•  Counselling and rehabilitation as preferred methods for managing breaches of the procedure;

•  Inclusion of the existing references (5, 8) to first and subsequent breaches of the procedures; and

•  Self-testing.

[344] This dispute is otherwise resolved.

DEPUTY PRESIDENT

Appearances:

Mr Y Shariff of Counsel, Mr T Sebbens, Partner, Ashurst and Ms J Woodroffe, Senior Associate, Ashurst, for Endeavour Energy.

Mr M Gibian of Senior Counsel, Mr A Jacka, Senior Industrial Officer, Electrical Trades Union of Australia (NSW Branch) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and Mr D Austin, Research Officer Electrical Trades Union of Australia (NSW Branch) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, for the Unions.

Hearing details:

2019.

Sydney:

29 October
30 October
31 October
1 November
11 November.

Printed by authority of the Commonwealth Government Printer

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ANNEXURE ‘A’

ANNEXURE ‘B’

ANNEXURE ‘C’