Navigating Workplace Drug Testing: A Guide for Unions in NSW and Queensland

Introduction

Workplace drug testing has become an increasingly prevalent practice in various industries across Australia, particularly in sectors where safety is paramount, such as mining, transportation, and corrections. While the intent behind these policies is often to enhance workplace safety and productivity, they also raise significant concerns regarding employee privacy and fairness. This article aims to provide unions with a comprehensive understanding of workplace drug testing laws and notable cases in NSW and Queensland, offering guidance on how to navigate and address these issues effectively.

Understanding the Legal Landscape

In both NSW and Queensland, workplace drug testing is governed by a combination of federal and state-specific laws. The Fair Work Commission (FWC), NSW Industrial Relations Commission (NSW IRC), and Queensland Industrial Relations Commission (QIRC) have adjudicated several pivotal cases that provide insight into how drug testing policies are viewed and enforced. I have not put any QIRC cases in this article as they are quite difficult to locate the cases in full online but they generally track with FWCFB, NSW IRC and AIRC rulings.

Key Cases and Legal Precedents (often relied on by unions)

Federal Courts

• CFMEU v Wagstaff Piling Pty Ltd [2012] FCAFC 87 Summary: This case highlighted the rights of employers to implement random drug testing policies, even when the enterprise agreement does not explicitly address the issue. The court upheld the employer's policy, emphasizing that such measures can be justified based on the need to maintain safety in high-risk environments.

• Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2012] FWAFB 4998 Summary: Endeavour Energy's implementation of random drug and alcohol testing was contested, but the Full Bench upheld the policy, underscoring the critical importance of workplace safety and the employer’s duty to ensure a safe working environment.

• Ruddell v Camberwell Coal Pty Limited T/A Integra Open Cut Mine [2010] FWA 8436 Summary: This case involved the dismissal of an employee who refused a drug test. The Fair Work Commission found the dismissal to be harsh, highlighting the need for fair and transparent procedural handling of drug testing and employee dismissals.

• Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales [2017] FWC 4916 Summary: Mr. Green was dismissed for refusing to undergo a blood test after passing an initial urine drug test (albeit with a suspicion the test was cheated with an adulterant or third party specimen). The FWC found that the direction to undertake a blood test was unreasonable, as it was not stipulated in the company’s drug policy and other less invasive testing methods were available. The dismissal was ruled harsh, unjust, and unreasonable, resulting in compensation awarded to Mr. Green. The compensation was however reduced by 20% due to Mr Green illegally recording his supervisors.

• Shell Refining (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] AIRC 510 Summary: This case addressed the methods of drug testing, with the Commission ruling that urinalysis was an appropriate method despite its invasiveness, given its accuracy and reliability for detecting drug use.

NSW Industrial Relations Commission

• Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) v Department of Corrective Services [2006] 153 IR 125 Summary: This case emphasized the legitimacy of drug testing in high-security environments, such as correctional facilities, where employee drug use could compromise safety and security. The NSW IRC upheld the dismissal of a prison officer who refused to undergo drug testing.

• Hibbard v Qantas Airways Ltd (1996) 70 IR 353 Summary: A technician’s dismissal for cannabis possession was upheld due to the safety-sensitive nature of the job. This case reinforces that in roles where safety is crucial, drug use is a significant concern that can justify stringent drug testing policies.

• Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 Summary: George Zisopoulos, a police officer (currently stood down pending unrelated criminal charges), was dismissed after testing positive for methamphetamine. He claimed his positive test was due to environmental contamination (from sources like swimming in Sydney Harbour and handling drugs at work, despite the fact many people swim in Sydney Harbour and pass drug tests and no other officer from his command failed a drug test despite handling drugs). The NSW IRC ruled in his favor, concluding that the testing was not indicative of impairment, emphasizing the need to distinguish between presence of substances and actual impairment.

Urine or Oral Fluid?

Whilst workplaces will advocate for urine testing and will point to cases like CFMEU v Wagstaff and Shell v CFMEU in defending it, it must be understood that the law is fluid. Acts and regulations really only mean anything until a judgement is made. That judgement only stands until a higher court contradicts it. Cases advocating for urine testing were usually decided in the 1990's and the early 2000's as oral fluid testing wasn't really accurate or commonplace until the late 2000's.

In 2014 the full bench of the Fair Work Commission concluded urine testing is not an indicator of impairment and deciding to penalise a worker for drugs in their urine is harsh/unreasonable/unjust. (see Harbour City Ferries v Toms [2014] FWCFB 6249).

Recently in 2023, the Fair Work Commission concluded that dismissing workers for adverse urine testing results was not lawful (see Goodsell v Sydney Trains [2023] FWC 3209). They relied on the Harbour City Ferries and Toms matter (a superior court/tribunal) and also a reasonably old case from the AIRC in 1998 (see Rose v Telstra Rose, Print Q9292 [1998] AIRC 1592) particularly the commissions finding that:

Conclusion

Workplace drug testing is a complex issue that balances the need for safety and productivity with the rights and privacy of employees. By advocating for fair and transparent policies, unions can help ensure that drug testing practices are implemented justly and in the best interests of all parties involved. By staying informed and proactive, unions can play a crucial role in shaping workplace policies that are both effective and equitable.

It is the opinion of any reputable entity in the drug/alcohol testing realm and the Fair Work Commission Full Bench that a workplace, testing on the grounds of safety, should only be requiring a worker undertake an oral fluid test as this is an indicator of impairment. A urine or hair test is an unreasonable intrusion into the personal life of a worker and has been the case for Urine testing since 2014 and hair testing since 2018 (albeit in NSW only).

If you're an employer in Australia and need advice on drug testing, send an email to info@whs.org.au or call WHS Guardian on 1300 183 984. If we can't help you directly, we know exactly who to put you in touch with.