Note: An appeal pursuant to s.604 (C2011/5025) was lodged against this decision - refer to Full Bench decision dated 14 August 2012 [[2012] FWAFB 4998] for result of appeal.
[2012] FWA 1809
[Note: a correction has been issued to this document - see 2012FWA1809_PR521748 signed 28 March 2012]
FAIR WORK AUSTRALIA
DECISION
Fair Work Act 2009
s.739 - Application to deal with a dispute
Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; and the Association of Professional Engineers, Scientists and Managers, Australia (C2011/5025)
ENDEAVOUR ENERGY ENTERPRISE AGREEMENT 2010
(ODN AG2011/7448) [AE884794]
Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER
SYDNEY, 26 MARCH 2012
Dispute concerning the introduction of alcohol and other drugs policy.
Introduction
[1] The applicant, Endeavour Energy, is seeking to introduce a new policy and accompanying procedure concerning alcohol and other drugs. The union respondents (the Communications, Electrical, Electronics, Energy Information, Postal Plumbing and Allied Services Union of Australia, NSW Divisional Branch (CEPU NSW), the Australian Municipal, Administrative, Clerical and Services Union, New South Wales United Services Branch (USU) and the Association of Professional Engineers, Scientists and Managers, Australia, (APESMA)) object to certain features of the proposed policy and procedure.
[2] The applicant applied on 8 July 2011 for Fair Work Australia (FWA) to deal with a dispute concerning the proposed policy in accordance with the dispute settlement procedure in the Endeavour Energy Enterprise Agreement 2010 (‘the enterprise agreement’). That procedure allows unresolved disputes relating to the relationship between the employer and employees to be referred to FWA for conciliation and/or arbitration.
[3] A number of conciliation conferences were conducted and correspondence exchanged between the parties in order to identify clearly (and where possible, minimise) the points of difference between Endeavour Energy and the unions. Endeavour Energy subsequently made an amended application on 15 December 2011 describing the nature of the dispute in some detail. On the basis of this amended application the following can be said:
a) Endeavour Energy is seeking to introduce a new policy and accompanying procedure titled Lifeguard Policy and Alcohol and Other Drugs Procedure.
b) The parties agree that there should be the establishment of a formal drug and alcohol policy to identify if an employee is ‘fit for duty’ and the respondents do not, in principle, oppose the concept of random alcohol and other drug testing.
c) The parties’ views however on the contents of the policy and procedure are different. The parties’ respective positions on the following components of the proposed policy and procedure can be summarised as follows:
i. The parties agree that the type of testing for Blood Alcohol Concentration (BAC) should be Breathalyser Unit in accordance with AS3547.
ii. The parties disagree on the cut-off or acceptable threshold level. The applicant proposes 0.02g/100ml for all employees with no subsequent follow up confirmatory test. The respondents reject this and propose 0.05g/100ml for most employees except those subject to specific RTA requirements.
iii. The parties disagree on the type of drug testing to be used. The applicant proposes urine testing whilst the respondents reject this and propose saliva (swab) testing.
iv. The parties disagree on the acceptable target cut-off levels. The applicant proposes to adopt the cut-offs prescribed by AS 4308 (the Australian standard for urine testing) whilst the respondents reject this and propose that the target concentrations from AS 4760 (the Australian standard for oral fluids testing) be adopted.
v. The parties disagree on the requirements for pre-employment testing. The applicant proposes to subject all new employees to a urine drug test prior to commencement of employment whereas the respondents reject this and only propose a requirement to have a breath test for BAC and saliva drug test.
vi. The parties disagree on the requirements of internal pre-placement testing. The applicant proposes to subject all internal pre-placement candidates to a urine drug test whereas the respondents reject any requirement for internal pre-placement candidates to undergo any drug or alcohol testing.
vii. The parties disagree on the procedure for random testing. The applicant proposes that the external service provider will randomly select the sites and employees for random testing with local management being given appropriate notice in order to make individuals available for testing. The respondents reject this and propose the testing to be undertaken without warning to any employees, contractors and/or visitors at any location as scheduled by an external service provider.
viii. The parties disagree on the criteria for proposed accident/incident testing. The applicant proposes testing if, in the opinion of the line manager, an individual has:
- been involved in an incident/accident where health and safety precautions or procedures appear not to be complied with;
- committed an act of misconduct;
- caused an injury to any person;
- displays any material decline in work performance or attendance or any irrational behaviour;
- committed an act of neglect or carelessness or breach of health and safety requirements; or
- contravened the policy in terms of drug or alcohol use.
The respondents reject this and propose testing of all employees, contractors and visitors involved in a reportable incident (as defined by WorkCover NSW), at the discretion of the General Manager Safety and Employee Services.
ix. The parties disagree on the criteria for causal/suspicion testing. The applicant proposes testing on the reasonable suspicion (guided by a checklist) of the line manager and another independent employee representative who has attended the awareness training. The respondents reject this and propose testing on the reasonable suspicion of two responsible persons, including at least one union delegate.
x. The parties disagree on the action to be taken by management if an employee returns a confirmed positive test or on suspicion of a breach of the policy. The applicant proposes for any suspected or actual breach of the policy to stand the employee down on pay and provide transport to the employee to safely leave the workplace. The burden of proof of any appeals in respect of the process would be on the employee, as would the cost of any follow-up sample. On confirmation of the first breach, an employee would be issued a first and final warning and a recommendation to volunteer in a course of counselling and/or rehabilitation. All costs associated with assistance over and above EAP would be at the employee's cost and primarily in the employee's time. On confirmation of a second breach within 12 months, the employee may be subject to further disciplinary action up to and including termination of employment.
The respondents reject this and propose that on confirmation of a first offence that the employee be provided with a copy of the lab results, be offered rehabilitation at the applicant's expense and be advised of the process of recurring offences. On confirmation of a second offence within a 12 month period, the employee must undertake rehabilitation and/or counselling at the applicant's expense and be advised of the process of recurring offences. On confirmation of the third offence within a 12 month period, the employee would be issued with a show cause letter as to why their employment should not be terminated.
xi. The parties disagree on whether confirmatory testing should occur. The applicant proposes to conduct a confirmatory test on site for BAC 20 minutes following a positive test but it does not propose to undertake confirmatory tests on site for positive urine drug tests as a second sample is sent to the laboratory for confirmatory testing. The respondents reject this and propose that any drug or alcohol test that returns a positive result on site shall be retested on site.
xii. The parties disagree on the target/follow-up testing procedure for individuals tested positive. The applicant proposes four tests in the first month, two tests in the second month and one test in the third and subsequent months for up to 12 months in addition to the random testing program. The respondents reject this and propose that an employee should only be required to undertake follow-up testing for a period of no longer than three months and that these tests should be random and outside of any other random testing program.
xiii. The parties disagree on the procedure if an individual fails to comply with a request to be tested. The applicant proposes to subject the individual to disciplinary action whereas the respondents reject this and propose that the individual should be treated as having a positive result.
xiv. The parties disagree on whether self testing kits should be provided. The applicant is not proposing to issue self test kits whereas the respondents reject this and propose that BAC self test kits should be available within offices, depots and in company vehicles for employees on standby to and/or call outs.
xv. The parties disagree on whether there should be an amnesty period. The applicant is not proposing to offer an amnesty period as testing will not commence until six weeks after individuals are trained on the policy and procedure. The respondents reject this and propose that an amnesty period of six months and financial assistance should be offered to any employee who self identifies and volunteers for rehabilitation.
xvi. The parties disagree on the process to develop the education/training program for employees. The applicant proposes to develop the training and provide the proposed training program to the respondents for comment whereas the respondents reject this and propose that the training program should be jointly developed by the applicant and the respondents.
xvii. The parties disagree on the requirement to disclose prescription medication. The applicant proposes to require individuals to disclose to the testing agency and the applicant the details of any prescription medication and the individual may be required to produce the original prescription or written confirmation from the treating doctor. The respondents reject this and propose that there should be no requirement to disclose personal prescription medication information to the applicant unless advised by their treating doctor or pharmacist that the medication could have side effects.
xviii. The parties disagree on the proposed procedure for retaining and disclosing results. The respondents reject the procedure and propose that the applicant should not be provided with the results of an individual’s drug or alcohol levels or details of any other drugs which are not identified in the Australian Standard.
xix. The parties disagree on clause 1 of the draft procedure which states the "purpose" of the procedure. The applicant wishes to proceed with the draft clause but the respondents reject this and propose that the purpose should include a statement of affording employees’ dignity and respect and encouraging and facilitating training and rehabilitation.
xx. The parties disagree on clause 5.10 of the draft procedure which provides that the applicant can implement variations to the procedure subject to consultation with employees and the respondents prior to implementation. The respondents reject this and propose that the procedure should be included as an Annexure to the enterprise agreement.
xxi. The parties disagree on the "authorities and responsibilities" outlined in clause 6 of the draft procedure. The respondents reject the proposed clause for line managers and propose that it should include responsibility for line managers to be trained as a responsible person. The respondents also proposed that the clause should include workplace delegates and state that they can volunteer to be trained as a responsible person.
[4] As the parties had been unable to resolve these differences, they were referred to FWA for arbitration. Hearings were held in Sydney on 31 January, 1, 2, 3 and 24 February 2012. The applicant was represented by Mr G Phillips with Ms J Smith and Mr M Greenhill. The respondent unions were represented by Mr R Whyburn, with Mr A McKinnon and Mr S McNamara. The following persons gave evidence on behalf of the applicant:
Mr S Korkoneas (the National Operations and Technical Manager for Medvet Laboratories);
Mr M Greenhill (the applicant’s Manager, Employee Relations);
Mr D Ferguson (the applicant’s General Manager, Health and Safety);
Dr J Vine (Laboratory Director, Racing and Analytical Services Ltd.); and
Dr J Lewis (Consultant Toxicologist, National Drugs and Alcohol Research Centre, University of New South Wales).
[5] The following gave evidence on behalf of the respondents:
Dr D Allen (Managing Director, Drug & Alcohol Solutions Australia);
Mr S McNamara (Manager, Energy and Utilities Division, USU);
Dr M Robertson (Consulting Toxicologist, Australian Workplace Drug Testing Services);
Dr K Pidd (Deputy Director, National Centre for Education on Addiction (NCETA), Flinders University); and
Mr B Currey (Organiser, CEPU NSW).
Consideration of the Issues
[6] The parties agree that the relevant principles that should be applied by the Tribunal are those set out in the XPT Case. 1 In that case, the Full Bench of the Australian Conciliation and Arbitration Commission said:
‘It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. 2’
[7] The proposed policy is based on promoting health and safety and the prevention of accidents. The Policy Statement contained at the beginning of the latest draft of the proposed policy 3 contains the following:
‘The Company is committed to the safety, health and welfare of its employees and non employees by reducing the risk of accidents and injuries. The Lifeguard Program has been developed to support our employees to work safely without being hindered from fatigue or alcohol and other drugs. The program provides for a risk based approach to the management of fatigue within the workplace and introduces measures to reduce the risk of accidents caused by alcohol and other drugs.
The Company has a responsibility to take all reasonable actions to allow employees to perform their work adequately and safely and that no employee commences or continues to work if their ability to work safely may be compromised by fatigue or alcohol and other drugs.’
Blood Alcohol Concentration
[8] The respondents do not challenge the employer’s proposal to test employees randomly on site for blood alcohol using a breath testing device. They do however oppose the proposed uniform imposition of a BAC of 0.02mg/100ml as unjust or unreasonable. Instead they seek that all employees should be subjected to a BAC level of 0.05mg/100ml, subject only to the legislative restrictions which apply to P plate drivers (0mg/100ml) and the drivers of heavy vehicles (0.02mg/100ml). Alternatively, the respondents proposed that there should be a risk assessment carried out by the employer to identify those employees at a higher risk, with the more stringent limit restricted to those employees.
[9] At page 8 of his statement 4 Dr Lewis said:
‘There have been numerous published studies into the effects of alcohol and (driving) impairment and there is compelling evidence of a strong positive correlation of blood alcohol levels and motor vehicle accidents. The decision to choose either 0.02 mg% versus 0.05 mg% blood alcohol concentration (BAC) should be made by considering whether there is a more significant risk of accident, injury or error of judgement by an employee if the higher upper limit is allowed on the worksite.’
[10] Dr Lewis summarised the section of his statement dealing with alcohol testing thus:
‘In summary, there have been many studies conducted on the impairing effects of alcohol, particularly in relation to driving. However, the potential risks to employees of Endeavour Energy working with high voltages and often at great heights poses an equal risk of injury or death. Based on a review of the above research studies, I am of the opinion that it would be appropriate to reduce the risk of impairment due to alcohol by adopting the lower allowable BAC of 0.02mg%. In light of published studies into motor vehicle crashes and BAC levels, I am of the opinion that Endeavour Energy would better comply with Occupational Health and Safety legislation if it adopted the lower level.’ 5
[11] Dr Robertson gave oral evidence that:
‘Alcohol has an impairing effect on certain functions, and if those functions are high risk, that is, if you make a mistake and there’s a high risk outcome, then 0.02 would be a preferred blood alcohol concentration compared to 0.05.’ 6
[12] It is clear that many employees at Endeavour Energy are engaged in high risk activities where a BAC level of 0.02mg/100ml is justified. However not all employees are engaged in such activities. Mr Greenhill, in his oral evidence, stated:
‘---...it seems not sensible to have two different standards within the organisation so if you’re going to land on one standard then given legal requirements that obtain to many 0.2 is logical.... [If you were to have two different standards] you then get to a debate about how close is this person to a safety critical role and should they be 0.5 or should they be 0.2? So you then have - I certainly wouldn’t want to characterise our organisation but I wouldn’t be surprised if we then had a series of disputes about where the cut off lay. So from an industrial perspective through which I speak having one standard fitting everybody is appropriate.’ 7
[13] When asked why 0.02mg/100ml was an appropriate cut-off for office bound staff such as receptionists, Mr Ferguson responded:
‘---Even application is the logic that’s been applied.
So one size fits all?---Basically.’ 8
[14] It appears to me to be unreasonable to impose an across the board level of 0.02 per cent BAC on all employees of Endeavour Energy merely because some employees are engaged in high risk activities where such a level is justified. There is simply no need for a ‘one size fits all’ approach. While I appreciate Mr Greenhill’s concern at the potential for a series of disputes, a policy where restrictions are based on a clear and logical health and safety rationale is more likely to be acceptable to the work force. Accordingly, I consider that the appropriate course is for the applicant to undertake a risk analysis of all jobs. Employees who are identified as undertaking high risk activities should be subject to a BAC level of 0.02mg/100ml. All other employees should be subject to a level of 0.05mg/100ml.
Drug Testing Method
[15] The respondents do not oppose the introduction of a system of workplace drug testing of employees. However, the parties disagree on the method to be used to test for drugs. The applicant proposes the use of on-site urine testing for drugs, while the respondents prefer oral fluid testing.
[16] Dr Vine gave evidence that:
‘Urine drug testing is a mature technology which has been used for over 20 years in Australia for this purpose. It is a highly accurate procedure which has been tightly regulated by the application of more and more stringent laboratory accreditation requirements under a succession of Australian and New Zealand standards.
Used correctly in conjunction with proper sample collection procedures, urine drug testing has extremely low false positive (detection of the drug when none is present) and false negative (failure to detect a drug which is present) rates. Results are sufficiently reliable such that where split samples are used (samples split into two identical portions at the point of collection) the analysis of the second sample virtually always confirms the result for the first sample. The relatively large volume of urine available means that split sampling can easily be accommodated in almost all cases which provides the best possible certainty that the result is correct.
Oral fluid is an emerging technology which is still changing and improving. It offers far less in the way of the range of drugs which can be covered and the detection times for many drugs are very short. It has a higher rate of both false positive and false negative tests than does urine testing. The relatively low volume of oral fluid specimens which are available for testing can make split sampling difficult or impossible in many cases, this inevitably reduces the laboratory's ability to repeat testing its procedures or to have specimens independently tested in another laboratory.’ 9
[17] Dr Vine noted that the Australian standard for oral fluid testing does not cover the benzodiazepines (sedating drugs known to cause impairment). 10
[18] Dr Vine stated:
‘Perhaps the factor most attractive to prospective users of oral fluid testing is the claimed effectiveness of the on-site testing devices. On the face of it this offers companies wishing to carry out testing a quick, relatively inoffensive, effective and reasonably reliable means of determining whether an employee has used a drug recently and who may therefore not be fit for work.
On-site test devices for urine testing are also available and have been used for many years for this purpose. However, the implementation of AS/NZS 4308:2008 has provided a procedure for the validation of these devices. It is now a NATA 11 requirement for accreditation of on-site testing that a validated device is used. If a non-validated device is used the testing report cannot claim compliance with the standard....
In contrast, however, no such provision for the validation of on-site testing devices is present in the oral fluid testing standard AS4760-2006. Without such validation, NATA has to date not accredited any person or organisation for the provision of on-site oral fluid testing.
If the validation methodology currently applied to on-site urine testing devices is applied to on-site oral fluid testing devices then it is almost certain that all of them will fail to provide acceptable performance. RASL has actually evaluated several of these devices on this basis and this was the case. So currently, there is no fit-for-purpose on-site oral fluid screening device available.’ 12
[19] Dr Vine stated:
‘It is often claimed that the collection of urine specimens is an invasive and humiliating experience for the person involved. It is difficult to see how the collection of urine is "invasive" which is a term usually used in connection with specimens such as blood or tissue. If collecting the urine specimen is carried out with tact and in a calm professional manner any "humiliation" will be kept to an absolute minimum. Unlike sports drug testing where direct observation of the act of urination is required, workplace urine collection usually allows for a measure of privacy which does not include such close inspection. Where samples are collected in a "clinic" situation, sometimes a mirror may be used to provide a view of the urine entering the collection cup.
Where direct observation is not used, it may be necessary to incorporate safeguards into the collection procedure to minimise the risk of falsification of the specimen. Such procedures include colouring the water in the toilet blue, ensuring there is no other access to sources of water, ensuring that those being tested are not concealing bags of "clean" urine under their clothes and by measuring parameters such as temperature, creatinine concentration and specific gravity. Colour and smell may also provide clues to attempted adulteration of samples.
In contrast, it is claimed that the collection of oral fluid is quicker, non-invasive, has no privacy concerns and is less likely to be compromised by attempted adulteration of the specimen. Collection of the specimen is usually quicker although drugs such as methamphetamine can cause a dry mouth and a much reduced ability to produce saliva which can greatly extend the collection time. The person being tested is usually given the collection device and collect their own sample. Falsification or adulteration of the specimen is more difficult than it is for urine, which is fortunate because effective tests to detect falsified oral fluid samples have yet to be developed.’ 13
[20] Dr Vine gave the following evidence about the relationship between urine and oral fluid testing and impairment:
‘While the results of urine drug testing do not assist in deciding whether an individual who has a drug detected in their urine is actually impaired by that drug, it provides a method whereby the employer is alerted to potential safety threats and the individuals who may cause risk or be at risk.
This can be of particular importance for those drugs which have not only acute and immediately impairing effects but also a less obvious but longer-term impairing effect or "hangover" effect. One such example is methamphetamine which initially produces stimulation, excitement and euphoria which can then lead to inattention, carelessness and risk-taking behaviour. However, after these effects have subsided there can be periods of intense fatigue, depression, lack of attention etc which may have serious OH&S consequences. This kind of hangover effect may be most pronounced on the day after use when oral fluid testing may fail to detect the drug....
While oral fluid testing may indicate very recent use of a few specific drugs, it is also likely to fail to detect those and other drugs at times when they are still present in the person's body at concentrations sufficient to cause impairment and to constitute a potential or real safety risk....
The value of urine testing is therefore that it can reveal a pattern of drug use which may indicate the potential for serious adverse OH&S consequences. Oral fluid cannot provide this early warning role.’ 14
[21] With regard to deterrent value of the different methods of drug testing Dr Vine gave the following evidence:
‘... the limited sensitivity of oral fluid tests will lead to the rapid realisation by those who have used drugs that their chances of being detected are relatively low. Urine drug testing is much more likely to uncover patterns of drug use by individuals which may lead to levels of impairment and concomitant safety concerns.
This is highlighted particularly by the failure of oral fluid tests to detect the use of cannabis unless used very recently or in very large quantities.... While cannabis can be detected very easily in oral fluid after ingestion by smoking for an hour or two, its concentration then drops very rapidly and in many cases becomes undetectable using the on-site detection devices after a few hours. It can be detected for longer using laboratory-based tests.
The possibility of detecting recent cannabis use is often promoted as a vindication of the use of oral fluid testing. However, in practice, cannabis use becomes undetectable well before the impairing effects of cannabis wear off....
Cannabis users will therefore quickly realise that they are unlikely to produce a positive test result unless they have used the drug within the previous few hours. Potentially an employee could smoke cannabis in the morning at work and test "negative" in the afternoon. Oral fluid testing therefore fails to adequately cover a group where there are major safety concerns and where it might have been expected to be at its most effective.’ 15
[22] During his cross examination, Dr Vine said that under ‘average conditions’ general detection times (using oral fluid) for cannabis are around ‘four, six hours at the most.’ 16 He later said with regard to the acute effects of THC intoxication:
‘Some people believe that effectively most of those acute effects are gone within four to six hours, others believe they last a bit longer.’ 17
[23] Dr Vine said that identifying an employee as a chronic user of cannabis would not tell anything about their state of impairment at the time of the test, but would alert an employer to the possibility that they have a particular employee who may have a serious drug problem. 18
[24] Dr Allen gave evidence that:
‘Whilst urine workplace drug testing has been used for some time in many workplaces it has a number of key limitations with regard to its reliability, equity, its intrusion into privacy.... With oral fluid testing there aren't the privacy concerns that exist with urine testing, and the current range of tests have shown themselves to be reliable. Oral fluids drug testing offers an equitable and reliable method of both monitoring potential intoxication and acting as a deterrent.’ 19
[25] Dr Allen gave evidence that if a collection agency is complying with AS4760, the on-site devices are checked for accuracy by a negative and a positive control every 25 devices. 20
[26] Dr Allen gave evidence about the frequency of cheating that goes on in urine testing. ‘As a physician who oversees thousands of pre--employment urine drug tests per year, I am very aware of the extent to which people will go to try and cheat the test and the very real difficulties in preventing these even in the very controlled environment of a clinic let alone in unprepared workplace environment.’ 21
[27] Dr Allen said:
‘What a worker does in their own time need not be the concern of an employer unless it directly affects the organisation with regard to issues such as safety.
Urine drug testing is widely acknowledged as giving a historical record of use and cannot assess the fitness for duty of a worker at the time of testing. Whilst there are no current studies proving the correlation of oral fluid drug levels and impairment, the presence of a drug in a worker's oral fluid sample is an indication of its presence in the worker's circulation at the time of testing.’ 22
[28] Dr Allen gave evidence that there are difficulties in discriminating between legal drugs (such as codeine) and heroin, when using urine testing. This is not a problem with oral fluid testing. He also pointed to what he described as the broad acceptance of oral fluids testing in workplace drug testing programs.
i. ‘Major organisations such as Qantas, TNT and Queensland Rail have oral fluids drug testing programs.
ii. One of the most safety critical and regulated industries is aviation. Both the Civil Aviation Services Authority and the US FAA have opted for oral fluids testing
iii. The energy industry in Australia is already adopting oral fluids testing. In NSW, Ausgrid and Essential Energy are in the process of implementing oral fluids based drug and alcohol testing programme. Delta Energy is also proposing oral fluids testing in its drug and alcohol testing regime. In other states the major energy companies have implemented or are in the process of implementing oral fluids drug testing programmes
iv. Local governments in NSW are conducting trials in the Hunter region utilising oral fluids drug testing.
v. The mining industry is moving towards oral fluids testing with the coal industry particularly in Queensland now predominantly using oral fluids.’ 23
[29] In his oral evidence, Dr Allen expanded on the issue of the usefulness of urine versus oral fluids testing for cannabis.
‘-the problem with urine testing for chronic cannabis use is you're not measuring what is necessarily causing intoxication. So you may well detect a level in urine of cannabis, cannabis metabolites, and the person may not be intoxicated whatsoever and it may be days since they last consumed cannabis, and there may be a high level. And that is particularly the case if they're dehydrated. So you may get a very high level in someone who is totally not intoxicated. So it's very-it's a trap and some doctors miss interpret this as being, you know, high level in urine means high level of consumption. Now, whilst that may be the case in some of those habitual users, it isn't necessarily the case at all. So I think it can be quite misleading to assume that a urine test is particularly useful for identifying chronicity of use.
And in terms of, again, urine testing for THC, the effects of smoking or otherwise inhaling or using cannabis, what can you tell us about the, sort of, window of opportunity to detect that and that's-the usefulness of that in terms of fitness for work or impairment for work?--- Okay. So when someone consumes cannabis typically by smoking there is an intoxication period, which is basically up to 3 to 5 hours. So the accurate intoxicating effects are in really the first few hours after cannabis use. So after that, there is negligible effect on performance. So the time that you want to identify someone who may be intoxicated is within the first four hours of consumption... the disadvantage of urine testing is that for it actually- for the cannabis metabolites to show up in urine and reach the threshold to show up on a test is going to take in excess of four hours.
... In terms of relevance to what is intoxicating, that what is relevant in their system at the time, I believe or fluid is substantially more relevant, particularly to cannabis use and the cannabis use is highly prevalent.’ 24
[30] Dr Lewis indicated that a person who had been using cannabis could still show up with a positive reading from a urine test according to the Australian standard (AS4308) up to three weeks later. 25
[31] Dr Robertson in his statement commented on evidence given by Dr Vine that due to the reduced window of detection of oral fluid there may be a limited deterrence value within the work force. He said:
‘Whilst it may be true that fewer individuals will be detected, this is largely due to the fact that fewer people will have recently used a drug and therefore fewer may be impaired as opposed to having used the drug in the days or weeks prior and still having detectable levels of drugs in their urine.
As a result the deterrence will be more focussed on impairment rather than simply the presence of a drug and therefore the intent of a fit for duty policy will largely have been met by the use of oral fluid testing.’ 26
[32] A number of witnesses (including Dr Vine and Dr Lewis) referred to the capacity of cannabis users to minimise their risk of detection through oral fluids tests by the use of mouth washes. The key published academic article referred to was by Wong et al 27. This was tendered by the applicant as exhibit E12. The authors conducted a study in which, inter alia, two on-site oral fluid drug screens were used to investigate the effects of adulterants on oral fluid test results. The authors reported lower results for the presence of THC after two commercially available adulterants had been used as mouth rinses. However the authors found that most of this reduction may have been due to the natural decrease of THC concentration in oral fluid samples over time (rather than the effect of the adulterants). The main conclusion of the article was that the adulterants were not effective in destroying drug residues in oral fluid. If there was any effect it was simply due to the adulterants cleansing the mouth and partially diluting the oral fluid sample. It was not disputed by any of the expert witnesses that one could reduce the risk of being caught by an oral fluids test if one thoroughly cleaned out one’s mouth after smoking marijuana. As Dr. Allen said:
‘The more diligent you are at brushing and scrubbing one’s gums ... the more likely you are to remove the material and the more likely you are to cause a negative test.’
[33] However he also suggested that someone who had just been smoking marijuana was unlikely to be ‘that thorough’. 28
[34] Dr Pidd’s written evidence was in the form of a report prepared for the ASU and the CEPU. 29 That report included the following:
‘It is generally accepted in the scientific literature that, while urinalysis may be a more reliable indicator of past drug use, saliva testing is a more reliable indicator of very recent use and therefore more likely to also indicate potential impairment or intoxication. Urinalysis detects use that has occurred days, and in some cases even weeks, before the test is carried out. Saliva testing, on the other hand, only detects use that has occurred in the past few hours (usually up to 24 hours). This is an important point when using testing to identify risk to workplace safety. Any positive relationship between drug use and workplace accidents and injuries is, by and large, likely to be due to the acute effects (intoxication) of the drug consumed. For most drugs, the negative effect of intoxication on performance has largely dissipated within 5 - 6 hours of ceasing use. The ability for saliva testing to detect very recent use, and therefore likelihood of indicating potential impairment, is one of the reasons that it has been chosen as the preferred test method for safety sensitive industries such as aviation and for use in roadside drug testing.
Urinalysis is particularly problematic as a method of indicating potential cannabis related impairment. There is substantial evidence to indicate that the acute effects (intoxication) of cannabis can negatively affect performance. These acute effects typically last for 2 - 5 hours after ingestion and are caused by the active psychoactive component of cannabis (delta-9 tetrahydrocannabinol). However, unlike saliva testing, urinalysis does not detect this active psychoactive component. Rather, urinalysis detects inactive metabolites ... that present in urine after cannabis use. This is a serious limitation in using urinalysis to identify cannabis related risk to workplace safety. The most recent review of evidence concerning this issue concluded that urinalysis is not recommended as a diagnostic tool to identify workplace safety risk from cannabis use. (Macdonald, S., Hall, W., Roman, P., Stockwell, T., Coghlan, M., & Nesvaag, S. (2010). ‘Testing for cannabis in the workplace: a review of the evidence.’ Addiction, 105 (3), 408-416.) This review of evidence was undertaken by a team of leading Canadian, US and Australian experts.’ 30
[35] Dr Pidd commented on Dr Vine’s evidence about hangover effects:
‘Hangover effects are the residual effects of drug use that continue to impact on human performance post intoxication. However, neither urinalysis nor saliva testing (or in the case of alcohol, breath testing) can detect impairment due to hangover effects...Dr. Vine rightly states that some research has found that the residual effects of cannabis use may have a negative effect on performance up to 24 hours after ingestion. However, research has also produced contradictory findings... and demonstrated that the effect is highly variable and can depend on the complexity of the task.... a review of evidence concerning the relationship between cannabis use and flying safety conducted for the Australian Transport Safety Bureau... concluded that performance impairment was at its maximum in the first four hours after cannabis use. For performance decrements to be still evident 24 hours after ingestion, other performance reducing factors such as task difficulty also needed to be present.... Post intoxication (or hangover) effects on performance are also evident in other drugs. For example alcohol BAC of 0.10% has been shown to have a negative impact on performance up to 14 hours after alcohol ingestion has ceased...Alcohol can continue to negatively affect performance long after BAC levels have reduced to zero.... Unfortunately neither urinalysis, saliva testing, breath testing or even blood testing can detect impairment due to the post intoxication (residual) effects of any drug including alcohol.’ 31
[36] It is clear from all the evidence presented during the hearings that neither oral fluid nor urine testing devices are perfect. Seen from one perspective, urine testing can be seen as more ‘accurate’ in that it is more likely to pick up whether an employee has at some stage taken certain substances. However, that is not necessarily the goal of a workplace drug testing regime. I repeat what I said in Shell Refining (Australia) Pty Ltd v CFMEU 32:
‘[117] Neither party in this dispute sought to argue that random testing for drugs (or alcohol) was unjust or unreasonable. However both parties also recognise that random testing is an intrusion on the privacy of the individual which can only be justified on health and safety grounds. The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety. Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time. Indeed, it would be unjust and unreasonable to do so.’
[37] Based on the evidence presented to me in this case I draw the following conclusions.
[38] Both methods are susceptible to cheating. For example, cleaning one’s mouth thoroughly after smoking cannabis would minimise the risk of being caught by an oral fluids test. Urine can also be adulterated. 33 There is some evidence that saliva/oral fluid screening is less susceptible to specimen adulteration or substitution compared to urinalysis.34 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.
[39] Australian standards exist governing both methods; and there are laboratories accredited for the analysis of both oral fluid and urine samples. Systems are in place to verify on-site testing devices for both oral fluids and urine.
[40] Neither method tests directly for impairment. However, a method which tests for recent consumption (only) is more likely to identify someone who is impaired. While some witnesses regard this as a weakness, it is precisely because it only detects for recent use that oral fluid testing is a better indicator of likely impairment as a result of smoking cannabis (the most widely used drug apart from alcohol 35) than a urine test. Indeed, urine testing may be unable to identify that someone has smoked cannabis in the previous four hours - precisely the time frame which is most relevant for identifying likely impairment.
[41] Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In the circumstances where oral fluid testing - which does not have this disadvantage - is readily available, I find that the introduction of urine testing by the applicant would be unjust and unreasonable. Accordingly I find that the system of drug testing that should be used by the applicant for on-site drug testing should be that involving oral fluids. This should be done on the basis of AS4760 - 2006: the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.
Acceptable Target Cut-off Levels
[42] Given my decision that testing should be done using oral fluid, the procedures contained in AS 4760-2006 should be followed. This includes the target concentrations included in that standard. In relation to Benzodiazepines, an appropriate target concentration should be determined by the applicant, in consultation with its service provider, Medvet.
Pre-employment and Pre-Placement Testing
[43] To be consistent, this should be done using breath and oral fluid testing in accordance with AS 4760-2006. I consider there is nothing unreasonable about the use of pre-placement testing.
Random Testing
[44] The proposed procedure states the following:
‘Random testing will:
Select individuals by a computer algorithm with operational, administrative, managerial and regular non-employee personnel on site eligible for selection;
- occur any time 24/7 during an individuals working hours;
- be performed the basis that the sites/dates for testing will be selected at the Company’s discretion without prior notice to the workplace;
- be performed by a representative of the Testing Agency;
- be determined by the Company’s Health & Wellbeing Manager and be confirmed with the Testing Agency one month before testing; and
- be advised by the Testing Agency to the Company workplace management giving one hours notice of intended testing.’
[45] Mr McNamara expressed concern in his written statement ‘that the process proposed by the Applicant is not a true random system and by the giving of notice in advance would give rise to the potential for abuse or interference with the process.’ 36
[46] Mr Korkoneas gave oral evidence concerning how his company (which will be the Testing Agency under the contract it has with the applicant) picks out workers who are going to be tested. 37 I am satisfied that employees will genuinely be selected at random. He also explained that the Testing Agency needed to call the workplace one hour before to make sure that a responsible manager will be present.38
[47] I find that there is nothing unreasonable (or unjust) about the proposed process for random testing.
The Criteria for Cause/Suspicion, Accident or Post-Incident Testing
[48] The proposed procedure provides for drug or alcohol testing ‘for cause/suspicion, accident or post-incident’. An individual may be requested to provide a sample for testing where the individual, in the opinion of the line manager:
- has been involved in an incident or accident in the workplace, where health and safety precautions or procedures do not appear to have been complied with;
- has committed an act of misconduct;
- has caused an injury to any person;
- displays any material decline in work performance work attendance or any other irrational behaviour;
- commits any act of neglect or carelessness or breach of health and safety requirements; and
- has contravened this procedure in terms of drug use.
[49] Mr McNamara said in his statement:
‘The Respondents say that the Applicant has failed to differentiate between post-incident/accident testing and causal/suspicion testing and that when these two different circumstances are properly understood as being different triggers for a drug and alcohol test in each of those triggers will have its own associated determining criteria. On the one hand causal/suspicion testing is often based on subjective grounds as opposed to the objective indicators for a post incident/accident test.
The Respondents said that the criteria proposed by the Applicant are unjust and unreasonable particularly given the inclusion of an act of misconduct. By the inclusion of misconduct the Respondents say that employees are denied procedural fairness in relation to any alleged misconduct and that an assumption needs to be made that the allegation is correct and therefore a test warranted. It is not clear whether or not the alleged act of misconduct is to be the subject of a formal disciplinary process prior to any determination. The notion that a drug or alcohol test can be conducted on the basis of allegation is totally unacceptable. As stated above in response to paragraph 11 (h), some of the criteria proposed by the Applicant, in particular an observation of the decline in work performance, is subjective and the potential exists for abuse. It is the Respondents’ position that whilst it is not compulsory for a union delegate to be the second responsible person involved in an assessment, it is important that union delegates are trained so that they may act as the second responsible person if required to assist in the process. I am aware that this procedure has been adopted elsewhere within the industry within which the Applicant operates.’ 39
[50] It is not unreasonable for an employee to be subjected to a drug or alcohol test after an incident or pattern of behaviour such as the ones referred to in the proposed procedure where a line manager has reasonable grounds for believing that the use of drugs or alcohol may have been a contributing factor. The need for such reasonable grounds is not clearly spelt out in the current draft. The document should be altered to include words to the effect that an individual may be tested (in the circumstances referred to above) where a line manager has reasonable grounds for believing that the use of drugs or alcohol may have been a contributing factor. This should minimise the risk of abuse.
Management of Breaches
[51] Mr McNamara, in his statement, expressed concern that the proposed procedure for management of breaches fails to offer support in a proper or compassionate way nor does it support an employee’s return to work. 40 While the draft procedure could be more clearly drafted, I do not consider that Mr McNamara’s criticism is justified. While the word ‘may’ is used, it is clear that first breaches will lead only to a warning, counselling and/or rehabilitation and a program of follow up target tests. Further disciplinary action (including possible termination) will only occur where an employee fails to cooperate with this process, or breaches the policy again within a 12 month period.
Confirmatory Testing
[52] To be consistent, confirmatory drug testing should take place in the laboratory consistent with the procedures in AS 4760.
Self Testing
[53] The respondents propose that BAC self test kits should be available within offices, depots and in company vehicles for employees on standby to and/or call outs. This would, according to Mr McNamara, allow employees to self identify potential risk. The uncontested evidence is that self-test kits are of poor quality and unreliable. 41 In these circumstances it is not unreasonable for the applicant not to make them available.
Education and Training
[54] I agree with Dr Pidd that ‘good quality education and training programs not only cover dissemination of the policy and drug testing procedures, but extend to raising workers and managers awareness of alcohol and drug related risk to health and safety and builds their capacity to respond to this risk.’ 42 I note that the proposed procedure indicates that, inter alia, there will be ‘education sessions for management and employees on the adverse effects of alcohol and other drugs on human health and workplace performance.’ It is the responsibility of the applicant to develop and deliver the training and education program. It is appropriate that it consult with the respondents as part of this process.
Amnesty Period
[55] It is likely that the introduction of the policy and procedures, and the associated education and training program, will lead some employees to ‘self identify’ and seek assistance for example with regard to rehabilitation. This is to be encouraged. I do not see the need for a specific amnesty period as such. However, it would be reasonable to allow a short period (e.g. six weeks) between the roll out of the education program in relation to a particular workplace (e.g. a depot) and the commencement of any random testing program covering that workplace.
Disclosure of Prescription Medication
[56] The applicant proposes to require individuals to disclose to the testing agency and the applicant the details of any prescription medication and the individual may be required to produce the original prescription or written confirmation from the treating doctor. This may be of less relevance with the use of oral fluid testing as this method - unlike urine testing - can distinguish between heroin and codeine. 43 It is an unreasonable invasion of privacy for an employee to have to disclose personal prescription medication information to the applicant unless and until a positive test result has been confirmed. At that point it might be necessary to consider whether a positive result has been caused by prescription medication. This may require appropriate medical advice. This can be done by the Designated Medical Practitioner referred to in clause 5.8 of the proposed procedure. This does not negate the need for employees to speak to their line manager if they have reason to believe they are suffering or may suffer side effects from taking prescription (or over the counter) medicine as referred to in clauses 5.1.1.3-8.
The Procedure for Retaining and Disclosing Results
[57] The proposed procedure and AS4760 provide for the highest levels of confidentiality. Any remaining concerns should be allayed as part of the education and training program.
The Stated Purpose of the Policy and Procedure
[58] The policy statement contained at 1.0 of the proposed policy is quite reasonable. In particular it indicates a commitment to the safety, health and welfare of its employees.
The Scope to Vary the Policy
[59] Clause 5.10 of the draft procedure provides that the applicant can implement variations to the procedure ‘by consulting with employees prior to any changes taking effect’. While it should for the sake of clarity also refer to consultation with the respondents, this is quite reasonable. It goes without saying that any revision would need to be consistent with this decision.
Authorities and Responsibilities
[60] The ‘authorities and responsibilities’ set out in the draft procedure are not unreasonable.
Conclusion
[61] The applicant can implement its proposed drug and alcohol policy and procedure, subject the following:
1. The appropriate blood alcohol concentration cut-off for all employees other than those obliged by legislation to have a lower cut-off be 0.5mg/100ml, except for employees determined by the outcome of a risk assessment to be engaged in high risk activities. Those employees should be subject to a BAC cut-off of 0.02mg/100ml.
2. The appropriate method of drug testing should be through oral fluid. This should be done in accordance with AS 4760-2006: Procedures for specimen collection and the detection and quantitation of drugs in oral fluid.
3. A target concentration for benzodiazepines should be determined by the applicant in consultation with its service provider.
4. The proposed procedure should be re-drafted to clarify that post incident and causal/suspicion testing should only occur where the line manager has reasonable grounds for suspecting that alcohol or drugs have been a contributory factor to the relevant incident or pattern of behaviour.
5. Confirmatory testing should occur in the laboratory consistent with AS4760.
6. Employees in any particular workplace should not be subject to random testing until six weeks have elapsed since the education program has been rolled out in relation to that particular workplace.
7. Employees should not have to disclose personal information about prescription medication unless and until they have returned a confirmed positive test. (This does not affect the requirements set out in clauses 5.1.1.3 to 5.1.1.8 of the procedure.)
8. The procedure should indicate that it will not be varied by the applicant until it has consulted the employees and their representatives.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G Phillips for the applicant.
Mr R Whyburn for the respondent.
Hearing details:
31 January
1 February
2 February
3 February
24 February
2012.
Sydney.
1 Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188
2 ibid at p.191
3 Attachment A to Exhibit E6
4 Exhibit E10
5 ibid. page 8
6 PN1650
7 PN296
8 PN422-3
9 Exhibit E8 pages 2-3
10 ibid. page 3
11 National Association of Testing Authorities Australia
12 ibid. page 4
13 ibid. pages 6-7
14 ibid. pages 7-8
15 ibid. page 8
16 PN558
17 PN700
18 PN610
19 Exhibit U2, pages 1-2
20 ibid, page 2
21 ibid. page 2
22 ibid. page 3
23 ibid. pages 3-4
24 PN917-919
25 PN762
26 Exhibit U4, page 6
27 Wong, R.C., Tran, M., & Tung, J.K. (2005) Oral fluid drug tests: Effects of adulterants and foodstuffs. Forensic Science International 150, 175-180
28 PN930-1
29 Exhibit U5
30 ibid, paragraphs 6-7
31 ibid, paragraph 8
32 Shell Refining (Australia) Pty Ltd, Clyde Refinery v Construction, Forestry, Mining and Energy Union [2008] AIRC 510, 25 August 2008
33 See for example, the evidence of Dr Robertson Exhibit U4, page 4
34 Exhibit U5, paragraphs 12 and 13
35 Exhibit U5, paragraph 15
36 Exhibit U3, paragraph 11(g)
37 PN25
38 PN162
39 Exhibit U3, paragraphs 11(h) and (i).
40 Exhibit U3, paragraph 11 (j).
41 PN574
42 Exhibit U5, paragraph 21
43 Exhibit U2, paragraph (d) (i)
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