Construction, Forestry, Mining and Energy Union – Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075

In a timely decision following PCS’ August webinar on drug and alcohol testing in the workplace, the Full Bench of the Fair Work Commission (the “Full Bench”) has upheld Port Kembla Coal Terminal’s (“PKCT”) policy of randomly drug testing its employees using both urine and oral fluid methods of testing, albeit on different grounds to those on which the policy was upheld in an earlier decision of the Fair Work Commission (“FWC”) in April this year.

Methods of testing: urine vs. oral fluid 

Debates over drug testing in the workplace have often centred on the fact that urine testing tends to detect historical drug use, while oral fluid testing tends to detect recent drug use. It has thus been argued that urine testing is an inappropriate method of testing because:

• it involves an invasion of employees’ privacy by potentially detecting drug use well outside work hours; and

• may not return results related to an employee’s level of “impairment” at work.

These types of arguments were run by the CFMU in this case.

The original decision

PKCT’s policy was first challenged by the CFMEU in April this year. In its first instance decision, the FWC upheld PKCT’s policy on the basis that both methods of testing were reasonable as a positive result would:

• detect some level of “intoxication”; and

• lead to a “logical inference” of “some impact on capacity to perform work related functions, irrespective of the time period that may have elapsed since the drug was taken”.

In regard to the CFMEU’s arguments in respect of employee privacy, the FWC concluded:

• “a blunt distillation of the contest in this case and its determination can be described as a choice between private lives or saving lives and I have opted for saving lives”.

The appeal

The CFMEU challenged the FWC’s decision on the basis that it had mistaken expert evidence by concluding that a positive test result was an indication of “intoxication”. Additionally, the CFMEU reiterated its argument that urine testing was an unreasonable intrusion on employee privacy.

The Full Bench accepted that the FWC had mistaken the expert evidence, holding that a positive test result “merely indicates the presence of a substance”, not “intoxication”, and set aside the FWC’s decision on that basis.

However, reconsidering the case, the Full Bench again upheld PKCT’s policy for the following reasons:

• the purpose of the random testing policy was deterrence and utilising both urine and oral fluid methods of testing reinforced this;

• the policy was aimed at PKCT fulfilling its work, health and safety (“WHS”) obligations to its employees in a high-risk workplace;

• urine testing is common in the industry; and

• significant weight was given to PKCT’s adoption of a “case management approach [to positive test results] which will have regard to the circumstances of individual workers.” The Full Bench held that, “while acknowledging that in some circumstances a non-negative result could lead to disciplinary action, other outcomes could include rehabilitation, counselling, participation in the Employee Assistance Program, scheduled testing and the development of a return to work plan”.

Lessons for employers

This decision is significant for suggesting that arguments in respect of employee privacy are unlikely to be successful in future cases on drug and alcohol testing in the workplace, especially in high-risk industries. However, as discussed in our August webinar, the decision also highlights the importance of:

• context; and

• the way in which a policy is framed,

in determining its reasonableness.

It remains the case that:

• the nature of an employer’s industry and WHS obligations will be vital in determining whether the drug and alcohol testing policy it wishes to implement is reasonable; and

• effective policies should be framed in terms of employee safety, and as educative, not just punitive, tools.