Clifford Gouldson Lawyers

Is workplace drug testing an invasion of privacy?

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Is workplace drug testing an invasion of privacy?

The Full Bench of the Fair Work Commission has had its say on workplace drug testing*. There were a number of critical issues that the Commission considered:

  1. The employer's statutory obligation to ensure the health and safety of all staff;
  2. The employer's invasion of privacy by requiring the employee to give urine samples and saliva samples;
  3. The efficacy of urine and saliva drug testing; and
  4. The employer's invasion into the employee's home life.

The Commission was clear that they considered the statutory obligations, to provide a safe workplace, outweighed the employee's invasion of privacy in giving the samples in stating:

“Having regard to the high-risk nature of the work undertaken at the Port Kembla coal terminal by employees, the privacy concerns about urine testing must therefore give way to allow the implementation of a testing method which will enable PKCT to identify and manage workplace safety risks”

Neither parties disputed that ensuring safety at work was paramount, however the efficacy of current drug testing was raised. Expert witnesses all confirmed that both methods are susceptible to cheating, neither test provided confirmation of impairment, and the scope of drugs each test can identify varies:

“Neither method is fool proof, the evidence indicates that oral fluid testing will generally indicate employees who have recently consumed a drug and are therefore likely to be impaired. Urine testing will identify whether an employee has taken a drug in the preceding days or even weeks”

As neither test provides conclusive evidence of impairment, it was found that the real purpose of a random testing regime was one of deterrence:

“The real purpose of a random testing is therefore to deter employees from attending work in an impaired state because of the risk that they might be detected”

The Commission therefore held that even though the testing methods were not fool proof, the use of both methods of testing as part of a randomised testing schedule, was not unjust or unreasonable for PKCT as a deterrent mechanism.

However, the Commission made it clear that as the positive result of a test does not provide proof of impairment, therefore disciplinary action should be tailored accordingly.  Employers should look at not only disciplinary actions but also rehabilitation, counselling, participation in Employee Assistance Programs and return to work plans.

*Construction, Forestry, Mining and Energy Union - Construction and General Division v Port Kembla Coal Terminal Limited [2015]  FWCFB 4075 (19 August 2015)

For more information contact our Workplace Team.

Danny Clifford, Director

Angela Pratt, Senior Lawyer

Nadia De Pascali, Lawyer

Amie Mish-Wills, Lawyer

Nigel Saines, Lawyer

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Phone 07 4688 2188

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