MAJOR ports operator DP World has successfully appealed a Fair Work Commission (FWC) decision prohibiting the company from taking urine samples as part of its drug and alcohol testing policy.

The appeal followed initial proceedings launched by the Maritime Union of Australia (MUA), in which Deputy President Anna Booth ordered DP World to amend its drug and alcohol testing policy to exclude urine samples as a follow-up procedure to a positive saliva test.

In the initial hearing, the MUA successfully argued that urine testing ‘invaded the privacy of an individual to undertake a test that… reveals more about the individual’s lifestyle than their fitness for work’.

However, a Full Bench of the FWC overturned the ruling, saying DP Booth fell into ‘significant error’ by trying to limit the use of urine testing on the basis that it is ‘unjust and unreasonable’.

“In circumstances where there was doubt about the meaning of the [company policy] clause, Deputy President Booth should, with respect, have turned to the surrounding circumstances and context to determine the dispute before her,” the Full Bench said.

“Deputy President Booth concluded that it was necessary for her to consider the merit of using urine for the second test.

“[However] the dispute before the Commission did not concern whether it was appropriate for urine testing to be used for the second test or whether its use was unjust or unreasonable – but, rather, whether the clause permitted or precluded urine testing for the second or confirmatory test.”

The Full Bench granted the appeal, indicating that:

• urine testing was an established part of the site-specific drug and alcohol testing arrangements operating at each of DP World’s terminals;
• the MUA’s claim in respect of the drug and alcohol policy issue sought “for cause testing as per Fremantle system”;
• it was not disputed that the Fremantle system involved preliminary drug tests conducted using oral fluid testing, confirmatory tests using urine testing, with confirmatory tests performed only where the donor had tested positive at the preliminary test;
• no concerns were raised by employees regarding urine testing during the consultations undertaken by DP World in developing the policy; and
• alcohol breath testing was also not explicitly referred to in the relevant clause despite being an established component of DP World’s site-specific arrangements.

Click here to read the decision in full.

Implications for Employers

The decision is significant for all mining, construction and other resource related workplaces that have responsibly used breath, oral and urine testing for more than 30 years to minimise potential harm to employees and others, in addition to removing a known safety risk.

“Resource industry employers take an uncompromising, professional and rigorous approach to managing occupational health and safety risks in their workplaces,” said AREEA chief executive Steve Knott.

“Workplace safety relies on vigilance and clarity on the duties and obligations of both employers and employees. Today’s decision is a positive development for safer workplaces throughout Australia.

“Mining, oil and gas employers have long been at the very forefront of managing health and safety risks, and reducing fatalities and injuries globally. Countless safe work initiatives benefitting millions of people have been developed through our industry.

“The industry is very proud of what employers and employees do every day to make our workplaces safer and makes no apologies for not compromising on taking the best possible approaches to potential safety risks.”

AREEA’s longstanding view is that the Fair Work Commission should not have the power to diminish any organisation’s capacity to meet their OHS obligations and how, based on professional advice and expertise, they manage safety.

This critical point will be pursued by AREEA in its advocacy on much needed future workplace relation reforms designed to ensure employers’ rights to manage effectively are not eroded by erroneous claims by third parties.

For more information about drug and alcohol testing in your workplace, please contact your local AREEA office and speak to one of our workplace relations experts.