Following months of preparation and four straight days of arbitration before Fair Work Australia in February, the hard work in fighting for oral testing over the employer demands of urine testing have paid off in a remarkable decision for the Energy Industry. The decision further differentiates between .05 v .02 breath alcohol limit for non safety critical roles.
Specialist evidence was provided relating to the toxicology of urine v oral swab testing. Urine testing, whilst not only invasive, provides a historic record of what an individual may have consumed in the days or weeks prior to the test. The oral testing regime is more likely to identify active ingredients closer to the window of impairment and restricts any potential for social monitoring by an employer of individuals in their own time.
The land mark decision outlines the implementation of an oral testing regime and breath alcohol limit of either .05 or .02 determined for each role by a risk assessment.
This decision is the first of its kind in Australia. We now have a decision that recognises that urine testing is harsh and unreasonable and in doing so establishes oral testing as the new benchmark. Deputy President Hamberger said in his decision:
“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.”
Evidence provided by the USU assisted with transforming the disputed procedural matters including casual and suspicion testing as well as privacy issues relating to prescription medication.
Senior Deputy President Hamberger said:
”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.”
This decision represents a great victory in the progression of technology and the clear recognition of the unreasonable nature of urine testing in workplaces.
The USU will now continue the hard work and attempt to finalise the policy in line with the attached decision in consultation with Endeavour Energy and the other unions.