On August 12 the full bench of Fair Work Australia upheld the decision by Senior Deputy President Hamberger of 26th March in the case Endeavour Energy vs Unions. The key to this case was not whether Endeavour Energy had the right to drug test its employees (this was already agreed to by the unions), rather whether urine or oral fluid drug testing was the most appropriate method of determining whether an employee was fit for duty at work.
In the original decision, after weighing up the most recent scientific information available as presented by a panel of expert witnesses, Senior Deputy President Hamberger found “the appropriate method of drug testing should be through oral fluid”. In fact he found that to utilise urine methods would be “unjust and unreasonable”.
In the appeal Endeavour Energy and the AMMA asserted that the scientific evidence was not properly analysed and that an earlier case, CFMEU v HWE Mining Pty Ltd, should take precedence. The full bench found that “we are not persuaded that Endeavour Energy has been able to establish any such error in relation to the Senior Deputy President’s decision” and therefore dismissed the appeal.
This decision does NOT mean that a company doesn’t have the right to drug test its employees, in fact the opposite. As evidenced by both the company and unions’ agreement to a random drug and alcohol testing program, there does appear to be concurrence that onsite random drug and alcohol testing is an appropriate form of risk management in the workplace. It does however indicate that given the current developments in technology, oral fluid drugs testing in accordance with AS4760-2006 is the method by which a drug and alcohol policy should be implemented if based on the premise of assessing risk of impairment due to potential intoxication.
Dr David Allen, managing director of DASA, was an expert witness in this case and DASA can provide the best available assistance to organisations who wish to implement the most efficient, effective and legally appropriate drug and alcohol programme.
See below links to the FWA website regarding both decisions:
Full Bench (Appeals) Decision – 12th August 2012: http://www.fwa.gov.au/decisionssigned/html/2012fwafb4998.htm
FWA Decision – 26th March 2012: http://www.fwa.gov.au/decisionssigned/html/2012fwa1809.htm