By Charles Power

Drug and alcohol testing is common in high-risk workplaces such as the mining, manufacturing and construction industries.

In Australia, the most common type of workplace alcohol and drug tests involve testing of urine.

An issue with urine testing is that it may detect recreational, out-of-work drug use rather than actual impairment at work.

Case study

In AMWU v Arnott’s Biscuits Ltd (2018) unions challenged the employer’s proposal to introduce a urine drug testing regime for reasonable cause, post-incident, pre-employment and return-to-work testing. The union’s argued that oral fluid testing should be used because it was a better test of impairment.

The Fair Work Commission (FWC) ruled it should not interfere in the decision of management to use urine testing on the basis that it did not cause an unjust or unfair outcome for workers.

The FWC noted:

• On-site oral fluid testing devices may not detect very recently smoked cannabis use while the person is acutely intoxicated or the use of benzodiazepines.
• Hangovers from chronic drug use are a safety risk, in addition to impairment from drug use, and oral fluid testing is not an appropriate method to identify hangovers.
• Urine testing will deter workers from drug use more than oral fluid testing because of its longer detection time.

The FWC concluded that the high-risk environment of the workplace (and the impact that a person impaired by drugs could have on safety) outweighed the risk that urine testing may identify the use of illicit drugs in non-work time.

Remember, you do not have a legal right to direct employees to submit to an alcohol or drug tests. If you force an employee to submit to a drug test you may be liable to have committed a criminal or civil assault.

However, you do have the right to implement reasonable drug and alcohol policy and carry out testing procedures in order to meet your duty to provide a workplace that is safe for those who work in it.

Your drug and alcohol policy must be reasonable to be enforceable.

A good start is to comply with the applicable Australian Standards. The applicable standard depends on the type of testing, as shown below:

If your employee breaches your drug or alcohol policy (by a non-negative test or refusing to submit to a test) you may be able to dismiss him or her for failing to follow a lawful and reasonable direction.

You will minimise your risk of challenge to this dismissal under the Fair Work Act unfair dismissal laws in the following circumstances:

• Your contract of employment with the employee refers to your drug or alcohol policy (or policies generally, which include the policy).
• The policy meets Australian Standards and is clear, reasonable and appropriate for the circumstances of the particular workplace.
• The policy expressly requires an employee to comply with the policy.
• The policy is clearly communicated to the whole workforce.
• The policy has been applied consistently to date (if not a zero-tolerance approach, differential application of the policy is not arbitrary but based on sound reasons, i.e. seniority or safety risk associated with the work of the employee).