Shell Refining (Australia) Pty Ltd, Clyde Refinery v CFMEU [2008] AIRC 510
There is a fine line to be drawn when randomly testing for evidence of drugs and/or alcohol impairing an employees' fitness for work. An employer is often criticised for entering the realm of an employee's private life. Urine based testing methods have been criticised for detecting drugs and alcohol which may have been ingested by the employee in the previous days (such as the weekend) which may not impair their work performance. New oral fluid testing is a more accurate method of testing for impairment and therefore gauging an employee's fitness for work.
This dispute arose as a result of concerns that CFMEU had with certain aspects of the drug and alcohol policy (D&A Policy) that Shell wished to introduce as its Clyde Refinery and Gore Bay Terminal. Specifically, the use of urine testing devices in 'random drug and alcohol testing' (RDT) in the D&A policy. This case concerned a decision made by the Australian Industrial Relations Commission (AIRC) under an alternative dispute resolution procedure agreed to by the parties.
The role of the AIRC was to consider whether it would be unjust or unreasonable for Shell to:
- Implement RDT of operators under its D&A Policy using urine as opposed to oral fluid testing.
- Apply RDT under its D&A Policy to operators at Clyde Refinery and Gore Bay Terminal unless such testing is applied to all Shell employees at those two locations.
- Apply RDT under its D&A Policy to operators at Clyde Refinery and Gore Bay Terminal unless such all employees of contractors engaged at those two locations are subject to such testing.
The AIRC found, based on the expert evidence submitted, that:
- Significant impairment to perform work functions only occurs for a few hours after the ingestion of drugs.
- While both oral fluid and urine testing will usually pick up anyone who has taken drugs in the previous few hours (and thus may well be impaired), urine testing will also pick up employees who have ingested drugs over the previous few days and are thus unlikely to be impaired at the time of testing.
- Urine testing will not indicate when the drugs were taken.
- 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 and safety.
- Beyond that the employer has no right to dictate what drugs or alcohol its employees' take in their own time.
- Oral fluid testing is a much more focussed method to indicate actual impairment of an employee which does not detect the use of drugs that would have no consequential effect on the employee's performance at work such as will urine based testing methods.
There were, however, two qualifications placed on the use of oral fluid testing over current urine testing practices:
1 Shell cannot reasonably be expected to implement a random drug testing system based on oral fluids until sufficient laboratories have been accredited.
2 Oral fluid testing does not accurately detect certain drugs (such as benzodiazepines). Shell should not be expected to implement an oral fluids based regime until it has the agreement of the union and the laboratory it wishes to use on what other drugs it wishes to test for and what would be an appropriate target concentration level.
Until these two qualifications were satisfied, it was not unreasonable for Shell to continue current urine testing methods.
The decision of the AIRC (in a formal sense) has no status as a legal precedent as it is akin to a private arbitration agreed to by the parties and only has binding effect on the parties involved.
However, there are some practical steps that can be taken by employers to be prepared to respond to this issue should a concern be raised by employees or a union.
- Review your D&A policy in light of the viability of oral fluid testing.
- Investigate the current status of accredited oral fluid testing laboratories.
- Investigate whether oral fluid testing is therefore a viable alternative to current urine testing methods.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.
