One of the most vexed issues when implementing an alcohol and other drug testing procedure is deciding whether to use urine or saliva drug testing.
Recent decisions of the Fair Work Commission (FWC) prefer saliva testing; however this approach has been complicated by a decision of the National Association of Testing Authorities (NATA) in July 2013.
Historically, the FWC and its predecessors endorsed the use of urine testing as more accurate than saliva testing. This position was reversed on 14 August 2012, when the FWC Full Bench upheld an earlier single member decision that preferred saliva testing to urine testing in Endeavour Energy v CEPU; ASU; APESMA. The Full Bench accepted that saliva testing could detect more recent drug consumption and is also less invasive than urine testing. As a result of this decision, Endeavour Energy implemented a policy with saliva testing, despite its preference for urine testing.
However, the NATA withdrawal of the provisions in Australian Standard 4760:2006 in July 2013 meant that organisations could no longer apply for accreditation for onsite saliva drug testing. While organisations may be accredited for collection, storage, handling and dispatch of saliva samples for laboratory testing under the Australian Standard, there is now no ability for an organisation to be accredited to do such testing onsite. This causes potential problems for employers whose policies already state that they will use onsite saliva testing and/or test onsite in accordance with Australian Standards, because it allows employees to argue either that a saliva test done onsite was inaccurate, or that it was not in accordance with the policy, or both.
In October 2013, Endeavour Energy used this type of argument in an application to vary or revoke the FWC Full Bench decision of 14 August 2012. However, Endeavour’s application was unsuccessful because the FWC said that nothing had changed from the time of the initial decision – that is, at the time of the initial decision no organisation had been accredited for onsite saliva testing.
Similarly, the National Union of Workers sought to challenge the dismissal of a worker in McCarthy v Woolstar Pty Ltd on the grounds that the onsite saliva test supporting the dismissal was faulty. In that case, the Full Bench accepted that a saliva test which detected a medium to high level of THC (i.e. marijuana) provided a valid reason for dismissal. A subsequent urine test did not show a positive result for marijuana; however, the employer had also sent a saliva sample to a laboratory for secondary testing which showed a positive result for THC. The Union’s criticism of the onsite saliva testing was irrelevant in the context of the FWC accepting that the secondary laboratory saliva testing supported the dismissal. The outcome may have been different had the employer relied solely on the initial positive onsite saliva test.
More recently, on 10 March 2014, in a dispute between the Maritime Union of Australia and DP World, Deputy President Booth concluded that 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‘. In that case, the applicable enterprise agreement provided that the company ‘will utilise swab testing‘. DP Booth also found that, when assessing impairment and safety risks in the workplace, there was no compelling evidence that secondary oral fluid testing would produce a more reliable result for most drugs, when compared to urine testing. Accordingly, the company could not reasonably implement a procedure of secondary urine testing, within the scope of the enterprise agreement.
There are of course other considerations in introducing drug testing regimes, including the need to ensure that the collection and analysis of samples is undertaken by an appropriately qualified person and that testing occurs in accordance with a written policy that sets out the obligations of the employees and the employer and the tolerances permitted by the employer. The policy must also be the subject of consultation with workers as required by work health and safety laws.
As a result of these recent decisions, it is apparent that the FWC has accepted that saliva testing provides reliable evidence of recent consumption of drugs. In this respect, saliva testing is more appropriate to target risks to health and safety at work associated with drug use. The recent cases and NATA’s decision also support the view that employers should implement a policy of secondary urine or laboratory saliva testing, in order to confirm the accuracy of test results.
Have these issues arisen at your workplace? Do you have views on either the efficacy of different testing methods or the privacy/invasion issue? Would you like our assistance in designing an approach for your workplace?