Outcome of Fair Work appeal could change onsite drug testing

The outcome of an appeal against a controversial Fair Work Australia (FWA) ruling could determine whether employers in Australia’s resource industry will be restricted in their ability to administer appropriate onsite drug and alcohol testing procedures, according to national employer group AMMA.

AMMA chief executive Steve Knott says the industry backs Endeavour Energy’s actions to appeal the FWA decision, which ruled the company could only administer saliva-based drug testing that is proven to be less effective than urine testing procedures.

FWA’s recent Endeavour ruling appears contradictory to an earlier decision involving HWE Mining, where the tribunal ruled that urine testing was more accurate and less likely to produce false negatives, says AMMA.

“The resource industry is concerned with both the inconsistent and conflicting decisions coming off the tribunal along with separate legislative proposals to restrict mining industry employers’ ability to introduce urine testing for drug detection,” said Knott.

“The contradictory decisions are not helping employers gain confidence in their ability to properly manage drug and alcohol issues, particularly when the experts have shown saliva testing is more likely to produce false negatives, meaning some workers, significantly impaired under the influence of drugs, will not be detected.

“Based on the findings in the HWE Mining case, there is a strong argument to be made that mining industry employers are obligated to adopt urine testing as the most accurate method of onsite screening in order to meet their stringent obligations under OHS laws.

“Yet Queensland, WA and NSW remain the only Australian states to have not yet abandoned proposals for a default drug and alcohol testing regime based on saliva-only, under state mine safety laws. These recent developments could act to hinder employers’ efforts in this area and restrict onsite drug testing to the less effective saliva testing, in line with the union agenda.”

Knott says employers are dedicated to meeting these obligations but their capacity to operate their businesses and maintain a safe work environment is being undermined by a separate union agenda.

“If the findings in the Endeavour Energy case are upheld on appeal, it will severely undermine employers’ ability to implement the drug and alcohol system of their choice and strengthen the union push against onsite urine testing,” he said.

“Employers’ hands must not be tied when it comes to drug and alcohol safety procedures on work sites.

“Three of our key resource states, Queensland, WA and NSW now have the opportunity to properly weigh up the pros and cons of these proposals and involve key stakeholders in the consultative process. There is still time to maximise the benefits of a national OHS system, without placing these unnecessary restrictions on resource industry employers.

“The majority of the states have abandoned these proposals and we believe the Queensland, WA and NSW governments should strongly consider the same course of action.”