QLD EILS Seminar: Taking The Piss? Alcohol and Drug Testing in the Workplace

11 June 2014
TAKING THE PISS?
DRUG & ALCOHOL TESTING
IN THE WORKPLACE
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Taking the piss? Drug & Alcohol Testing in the Workplace

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AGENDA
 Overview of drug and alcohol testing methods
 Case law: The debate between urine and saliva testing
 Privacy regulation of drug & alcohol testing
 Negotiating drug & alcohol testing policies & EBA clauses
 Morning tea
 Workplace drug and alcohol testing: is it lawful?
 Consequences of failing a positive drug and alcohol test
 MySuper Amendments

DRUG AND ALCOHOL TESTING
7
Emma Hoy
Special Counsel
Employment & Industrial Law Section

DRUG AND ALCOHOL USE IN THE
WORKPLACE
 Alcohol and other drug related problems can occur in any workplace.
 Costs include injuries, absenteeism, lost production, workers compensation and
rehabilitation services
 Drug and alcohol use can have both a direct and indirect impact on workplace health
and safety. In particular, D&A use can cause:
 Impairment
 Intoxication
 Fatigue
 Hangover
 Negative health outcomes
 Addiction

WORKPLACE DRUG AND ALCOHOL
TESTING
 To respond to the risks associated with drug and alcohol use and
impairment, employers have, with renewed frequency, adopted workplace
drug and alcohol testing policies.
 Competing considerations in this debate include:
 Workplace health and safety;
 Employee privacy and unreasonable intrusion into private life;
 Employee welfare;
 Productivity; and
 Employer and employee reputational issues.

OVERVIEW OF DRUG AND ALCOHOL
TESTING
Methods of Testing
1. On-site screening
2. Laboratory analysis
Testing Programs
1. Pre-employment
2. Post accident/incident
3. Random
4. For Cause
Types of Workplace Drug and Alcohol Tests
1. Breath Analysis
2. Urinalysis
3. Saliva
Source: Ken Pidd, Workplace drug testing: evidence and issues, NCETA, Flinders University

METHOD OF
TESTING
ADVANTAGE DISADVANTAGE
ON-SITE DRUG
SCREENING
 Relatively inexpensive
 Quick
 Easy to administer
 Cannot distinguish between
prescribed drug and illicit drug
use
 Lower level of accuracy and
reliability than lab testing
 Some prescribed drugs/food
stuffs can produce false positives
 Subject to human error
LABORATORY
DRUG
ANALYSIS
 More reliable and
accurate than on-site
testing
 Can detect wider
range of drugs
 Can detect both level
of drug use and
metabolite present
 Expensive and time consuming
 Cannot distinguish between
legitimate prescription drug use
and illegitimate use
 Some prescribed drugs/food
stuffs can produce false positives
 Subject to human error

TYPE OF
TEST
ADVANTAGE DISADVANTAGE
BREATH
TESTING
 Onsite test that can reliably
indicate alcohol intoxication
and or impairment
 Non-intrusive
 Wide acceptance
 Can only detect alcohol use
 Requires constant calibration
 Can be affected by paint and
solvents
 Cannot detect hangover effects
URINE
TESTING
 Inexpensive (test)
 Developed methodology
 Fewer sample storage issues
 Detects benzodiazepines
(sleeping tablets)
 May be more accurate than
saliva testing (query)
 Intrusive – privacy concerns
 Collection may be expensive
and time consuming
 Cannot detect
impairment/intoxication
 Cannot detect hangover effects
 may detect historical use (i.e.
private time)
SALIVA
TESTING
 Non-intrusive
 Can detect recent use so
better indicator of impairment
 Difficult to adulterate
 More expensive
 Query accuracy compared to
urine

PROBLEMS WITH DRUG AND ALCOHOL
TESTING
 Commentators question the cost effectiveness of drug and alcohol tests and
their efficacy to deter drug and alcohol use at work, reduce the prevalence
of injuries and accidents and improve safety.
 Some consider such tests to be ineffective as workplace drug and alcohol
tests cannot determine:
 past drug use;
 the degree of impairment/intoxication (except alcohol breath analysis);
 If the person is a chronic, casual user or an addict; or
 If the drug was prescribed.

CASE LAW:
THE DEBATE BETWEEN URINE AND
SALIVA TESTING

URINE OR SALIVA TESTING?
 The issue of whether urine or saliva drug and alcohol testing is the most appropriate
drug testing methodology is controversial.
 There remains scientific debate as to the better method of testing.
 There have been a number of decision of industrial tribunals relating to this issue but
there is not yet any consensus. See, for example:
– Boral Cement Ltd and AWU (unreported, 21 October 2011)
– CFMEU v HWE Mining P/L [2011] FWA 8288
– Briggs v AWH P/L [2013] FWCFB 3316
 The FWC has come under criticism for its alleged inconsistent decision-making on
this issue.
 A five member Full Bench of the Fair Work Commission will shortly be convened to
consider this issue.

ENDEAVOUR ENERGY V CEPU, ASU, APESMA
[2012] FWA 1809, SDP HAMBERGER
 Employer sought to introduce a new policy and procedure relating to alcohol
and drugs in the workplace. The Unions objected to certain aspects of the
policy.
 The dispute was referred to the then-FWA to arbitrate.
 The principles of managerial prerogative outlined in the XPT Case (AFULE
v State Rail Authority of NSW) applied, including not interfering in the right
of an employer to manage, unless it is “unjust or unreasonable”.

ENDEAVOUR ENERGY CONT.
 It was accepted that random D&A testing was reasonable.
 SDP Hamberger held:
 A uniform BAC restriction of 0.05 was not appropriate. The level should
be 0.02 for ‘high risk’ jobs and 0.05 for all others.
 Pre-employment and placement testing is reasonable.
 Cause/suspicion, accident or post-incident testing is appropriate
provided that there are ‘reasonable grounds’ for considering drugs or
alcohol may have been a contributing factor. Cause/suspicion can
include neglect, carelessness, irrational behaviour or repeated absence.

ENDEAVOUR ENERGY CONT.
 The proposed process for random testing was reasonable (including use
of a computer algorithm for selection).
 Confirmatory testing should take place in the lab (AS 4760).
 There was no need for an ‘amnesty period’, although a short time
between the education programme and ‘roll-out’ is appropriate.
 To require mandatory disclosure of prescription medication is an
unreasonable invasion of privacy. This should only be required on a
positive test.

ENDEAVOUR ENERGY CONT…
 On the question of the drug testing method, his Honour held:
 Both methods are susceptible to cheating;
 Australian standards, accredited laboratories and on-site testing devices
exist for both methods;
 Neither method tests for impairment, although saliva testing is more
likely to identify impairment (eg. four hour lag time for urine testing);
 Testing should be conducted consistent with Australian Standard AS
4760-2006: Procedures for specimen collection and the detection and
quantitation of drugs in oral fluid.

ENDEAVOUR ENERGY CONT…
 “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…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.”
 Endeavour Energy decision upheld on appeal to Full Bench.

ENDEAVOUR ENERGY
[2014] FWC 198
 Following a decision by NATA (National Associating of Testing Authorities) to
withdraw provision of accreditation for on-site saliva testing, the employer
applied to the Commission to alter its previous ruling on the basis of a change in
circumstances.
 No evidence to suggest that on-site oral fluid testing devices are unreliable;
 In the absence of the NATA accreditation being suspended, there was
evidence of appropriate quality control measures for on-site devices;
 There was no basis for an alteration to the previous Commission decisions.
It was not put that, in the absence of accreditation, on-site testing was not
possible.

MUA V DP WORLD LTD
[2014] FWC 1523, DP BOOTH
 DP World sought to implement a national Alcohol & Drugs Policy.
 The Unions (the MUA and TWU) objected to certain aspects of the policy.
 The Commission adopted the test in the XPT case regarding managerial
prerogative.
 The employer sought to introduce a second urine test, after an initial non-
negative saliva test for drugs.

MUA V DP WORLD CONT.
 On the question of the method of drug testing, her Honour held:
 Impairment from cannabis commences after 30 mins and lasts 4-6
hours.
 A saliva test will not detect cannabis in the first 30 mins, and after 4
hours (or cannabis that has been eaten).
 A urine test will likely not detect cannabis in the first 2 hours, and will
detect cannabis after days, or even weeks, after smoking (without
revealing time of use, or level of impairment).

MUA V DP WORLD CONT.
 Her Honour held:
 In relation to amphetamines/psychostimulants, MDMA and opioids, the tests are of
equal utility.
 In relation to benzodiazepines, a urine test is preferable.
 Urine testing is “more personally intrusive than oral fluid testing” and “may reveal
personal choices of individuals that do not present a risk to safety in the workplace.”
 It would therefore be unreasonable to have a urine test, after an initial non-
negative saliva test.
 In a confirmatory test, the same suite of drugs should be tested for (i.e. not an
increased range, or only that drug which was non-negative).
 Employee may request attendance of MUA Delegate at a confirmatory test, and any
subsequent engagement with the employer.

MUA V DP WORLD
THE FIGHT CONTINUES…
 Currently the subject of an appeal to an extraordinary five member Full
Bench.
 Hearing presently scheduled for 12 and 13 June 2014.
 VP Catanzariti granted a stay of DP Booth’s order to cease urine testing,
because of the “significant confusion” and “resources required” if DP World
had to modify its testing arrangement and was then successful on appeal.

PRIVACY REGULATION OF DRUG &
ALCOHOL TESTING

PRIVACY REGULATION
 Federal Privacy Act 1988 (Cth)
 Limited application
 No express regulation of D&A testing
 Employee records exemption
 Queensland Information Privacy Act 2009 (Qld)
 Limited application: Public Sector
 No express regulation of D&A testing
 No employee records Exemption
 Currently no Health Record Act unlike other states (Vic)

NEGOTIATING DRUG & ALCOHOL
TESTING POLICIES & EBA
CLAUSES

BARGAINING FOR D&A TESTING SCHEME
IN AN EBA
 The advantages of regulation by industrial instrument vs employer policy.
 D&A testing regime a ‘permitted matter’ under s 172(1).
 Ensure full access to dispute arbitration under DSP (eg. be wary of OHS
carve-outs).
 Ensure D&A testing regime ‘covers the field’ with respect to D&A testing.

CONSIDERATIONS IN A D&A TESTING
REGIME
 A non-punitive and supportive approach (eg. EAP, voluntary testing).
 Consider use and disclosure of personal information collected through
testing.
 Consider the storage and security of personal information, including a
procedure for destruction.
 Ensure confidentiality of test results.
 Ensure access to results of testing, at same time as employer, with right to
have spare (‘B-Sample’) tested.

CONSIDERATIONS IN A D&A TESTING
REGIME (CONT.)
 Ensure consistency with Australian Standard.
 Consider whether on-site or lab testing more appropriate.
 Consider appropriate level of BAC for the circumstances.
 Closely scrutinise the ‘triggering’ events for testing (particularly for
cause/suspicion).
 Consider the best process for ‘random’ selection of employees.

QUESTIONS?

IS IT LAWFUL?
33
Rachel Smith
Lawyer
Employment & Industrial Law Section

EMPLOYERS’ OBLIGATIONS
 Workplace health and safety
 Industry regulation

BHP IRON ORE V CMETSWU
 (1998) 82 IR 162
 BHP sought to introduce a drug and alcohol testing programme.
 The WA IRC determined that the proposed programme was reasonable.
 It said:
There can be no doubt that the Programme involves an intrusion into the privacy of
individual employees. However the current standards and expectations of the
community concerning health and safety in the workplace as evidenced by legislative
prescriptions and judgments of courts and industrial tribunals are such that there will,
of necessity, be some constraint on the civil liabilities at times and, in particular, an
intrusion into the privacy of employees.

CFMEU V WAGSTAFF
 [2012] FCAFC 87
 Wagstaff was a contractor on a Thiess motorway project.
 Thiess required all of its contractors to comply with its Fitness for Work
policy in relation to their employees.
 Policy required random drug and alcohol testing.
 Wagstaff Enterprise Agreement included policy on self-management of drug
issues, and was silent on drug and alcohol testing.

CFMEU V WAGSTAFF
 CFMEU objected to the drug and alcohol testing, and argued that because
the enterprise agreement was silent on drug and alcohol testing it was
prohibited under the agreement.
 The Full Federal Court found the agreement did not prohibit mandatory
random drug and alcohol testing. The terms of the agreement did not
exclude coercive measures that were in the interests of safety.
 Court confirmed that terms of enterprise agreements do not displace
contractual terms, including the obligation for an employee to abide by
lawful and reasonable directions from his or her employer.

BRIGGS V AWH PTY LTD
 [2013] FWCFB 3316
 Mr Briggs was directed to undergo a drug and alcohol test and refused on a
number of occasions. AWH dismissed Mr Briggs.
 FWC Full Bench found it was not an unfair dismissal:
 Mr Briggs’ employment contract expressly required him to comply with
the company’s various policies as amended from time to time. Mr Briggs
was therefore contractually bound to comply with the drug and alcohol
testing policy.

BRIGGS V AWH PTY LTD
 FWC Full Bench found it was not an unfair dismissal (cont.):
 The policy was consistent with standard practice in the WA resources
industry.
 AWH’s clients had imposed contractual obligations on AWH concerning
drug and alcohol testing.
 The AWH workplace was one in which most employees were required to
operate heavy machinery and equipment as part of their daily duties.

LESSONS
 Whether a direction to undergo a particular drug and alcohol testing
programme is lawful and reasonable in the circumstances will depend on:
 the nature of the particular work and industry concerned;
 the terms of the employer’s policy;
 whether the employer puts in place safeguards for employee privacy.
 Terms of enterprise agreements do not displace contractual terms, including
the obligation for an employee to abide by lawful and reasonable directions
from his or her employer.

CONSEQUENCES OF FAILING A
DRUG AND ALCOHOL TEST

OLIVER WISE V MILDURA ABORIGINAL
CORPORATION
 [2013] FWC 6177
 MAC’s aim is to “engage, support and strengthen Aboriginal people effected
by drug and alcohol use, mental illness and social disconnection”.
 Mr Wise dismissed after a police check showed he had been charged with
possession of ecstasy (2 tablets) and unlawful possession of explosives (a
firecracker).
 Question: was there a relevant connection between the offences and the
employment relationship?

OLIVER WISE V MILDURA ABORIGINAL
CORPORATION
 Commission found:
 Unfair dismissal.
 No link between conduct complained of and employment.
 Even if there was a sufficient connection the finding of 2 ecstasy tablets
18 months old is not so serious as to suggest a repudiation of the
contract of employment.

VALID REASON FOR DISMISSAL, BUT
OTHERWISE HARSH?
 The cases show that a positive drug or alcohol test result is usually a valid
reason for dismissal, however you must look at the surrounding
circumstances to determine whether it is an unfair dismissal.
 There are a number of cases in which an employee has been found to have
an unacceptably high level of drugs or alcohol in their system, but their
dismissal has been found to be unfair.

DALEY V GWA GROUP
T/A DUX HOT WATER
 [2011] FWA 6993
 Random drug and alcohol test at the start of his shift: BAC 0.76%.
 No argument that this constituted a valid reason for dismissal, however, Mr
Daley argued that his dismissal was harsh for other reasons:
– Length of service with Dux.
– Unblemished work record.
– Breach discovered randomly, not through any incident.
– Employer policy clearly contemplates a situation where an employee
may return a blood alcohol test in excess of the prescribed amount on
more than one occasion without dismissal.
– Mr Daley admitted culpability.
– Mr Daley had ceased drinking alcohol altogether.
– Poor alternative employment prospects.

DALEY V GWA GROUP
T/A DUX HOT WATER
…it is my view that the termination of the applicant’s employment on the
basis of his first breach of the [alcohol and drug policy] was, in the
circumstances, harsh. The applicant had 19 years service with an
unblemished record. Due to his age, health and lack of education the effect
of the termination upon him was more severe than it may have been on a
younger, healthier or more highly educated employee. The Applicant has
demonstrated that he recognises the seriousness of the breach and has
ceased to consume alcohol. In my view he deserves at least one
opportunity to demonstrate this is the case.
 Commission ordered that Mr Daley was to be reinstated to his position. No
compensation was awarded because of his breach of the policy.

TOMS V HARBOUR CITY FERRIES
 [2014] FWC 2327
 Smoked a marijuana cigarette on 24 July 2013 for shoulder pain.
 Called in to relieve as Ferry Master on 25 July 2013.
 Involved in a minor crash, and subsequent blood test proved positive for
THC.
 Harbour City Ferries dismissed Mr Toms.

TOMS V HARBOUR CITY FERRIES
 DP Lawrence found Mr Toms’ dismissal unfair and reinstated him to his
employment. Relevant factors:
 17 years satisfactory service.
 No evidence of impairment and no link between drug test and accident
 No harm occasioned to passengers.
 Mr Toms had not been rostered on that day, he was helping out.
 Mr Toms was cooperative and honest during the investigation.
 Dismissal had a serious impact on Mr Toms.

BUT, SOMETIMES DISMISSAL IS FAIR
 However, the cases also demonstrate that in many circumstances, it is fair
to dismiss an employee who has failed a drug and alcohol test.
 Michael Donovan v Austcold Refrigeration [2013] FWC 4342
– Tested positive for methamphetamine during yearly medical screening
of employees.
– Stood down and directed to attend for another test 2 weeks later.
– Second test showed BAC of 0.137%.
– Fair dismissal.

BUT, SOMETIMES DISMISSAL IS FAIR
 Allan Carter v BIS Industries Limited [2013] FWC 8329
– Employed as a Kress Operator (large machine like a front end loader).
– Pot of molten slag detached from the machine, tyres of Kress on fire.
– Tested positive to cannabis.
– Fair dismissal.

DISHONESTY DURING TESTING
 Issue of honesty, candour and trust and confidence is paramount.
 Cases show that even where the employee’s positive drug test would not be
sufficient to warrant dismissal, their dishonesty during the testing or an
investigation was sufficient.
 Ruddell v Camberwell Coal [2010] FWA 8436
– Dismissed for producing an adulterated sample (it was cold).
– Tampering with a sample or giving a fake sample sufficient to warrant
dismissal.
– Not an unfair dismissal.

DISHONESTY DURING TESTING
 Stephen Vaughan v Anglo Coal [2013] FWC 10101
– 5 April – lied on screening form prior to test.
– 11 April – lied about having taken drugs after positive test.
– 16 April – admitted taking methamphetamine on the weekend prior.
– Commission: lying on 11 April justified dismissal.
– Open question: did lying on the screening form justify dismissal?

IRREGULARITIES DURING TESTING
 McCarthy v Woolstar Pty Ltd [2014] FWC 1186
 Positive for a high level of THC (3 times allowable amount).
 Mr McCarthy argued that test should not be able to be relied upon
because the on-site testing body was not undertaken in accordance with
the Australian standard.
 Not an unfair dismissal.

IRREGULARITIES DURING TESTING
 Dawson v Railway Transport Services [2011] FWA 4915
 Mr Dawson smelt strongly of alcohol at work.
 Sent home, subsequently dismissed.
 Commission: valid reason, but he had not been given an alcohol test, so
no opportunity to demonstrate that he was not under the influence of
alcohol.
 Unfair dismissal.

MYSUPER AMENDMENTS
56
Paul Watson
Associate
Superannuation & Disability Insurance

Personal Injury
This information is prepared for the purposes of the seminar conducted on 11 June 2014 only. The content of this paper is not
legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should
not rely on the content of the foregoing but should take appropriate legal advice.

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