The Fair Work Commission (FWC) has given food manufacturer, Arnott’s Biscuits Ltd (Arnotts) the green light to conduct compulsory urine testing. United Voice, Australian Manufacturing Workers’ Union (AMWU); and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Unions) disputed that the use of urine testing was necessary. The Unions submitted that using a less intrusive oral fluid test to determine drug or alcohol impairment at work was preferable. The Unions challenged Arnott’s introduction of urine testing in its Drug and Alcohol Policy (DAP) through the FWC before it had been fully implemented. Commissioner Hunt of the FWC in Brisbane delivered the final decision on 31 May 2018.
Arnott’s DAP allows for compulsory urine testing in four circumstances: (1) as part of the pre-employment process; (2) following a serious workplace incident; (3) where there are reasonable grounds to believe that an individual may be at risk of being impaired by alcohol or drugs; or (4) following a positive test result. Random testing would not form part of the DAP.
The Unions accepted that urine testing was appropriate in circumstances (1) or (4) but submitted that oral fluid testing was more relevant for circumstances (2) and (3). The Unions argued that urine testing unnecessarily impinges on the privacy of an individual regarding their activities outside of work hours. Given that drugs may remain present in urine for several days after any impairing effects have worn off. For example, cannabis is in an individual’s system 2-4 days after it has been used, while oral fluid tests detect only for the hangover effects of cannabis which can last up to 24 hours.
The Unions argued that urine testing in circumstances (2) and (3) went beyond the stated aim of the DAP which is to minimise the risks posed to workplace safety by the misuse of alcohol and drugs and to offer appropriate support to an employee who may experience drug or alcohol dependency issues. The Unions contended that the DAP does not address the concerns regarding worker privacy. Commissioner Hunt found that although Arnott’s’ policy was intended to go beyond testing for potential impairment on the day, to manage the risk of workers who engaged in regular drug use, it was not unreasonable to adopt a testing method that determined if a worker was affected by hangover or long-term effects.
Arnott’s and the Unions gave evidence from various experts on the efficacy of urine testing in comparison to oral fluid testing. Commissioner Hunt held that the adoption of urine testing was a “reasonable exercise of Arnott’s right to manage its business in the way it sees fit”. The high-risk environment of the site which includes the operation of large machinery, heavy equipment, a powered mobile plant and ovens operating at high temperature means that safety measures in the workplace need to be strenuous.
Commissioner Hunt found urine testing’s longer detection period would impose a more significant deterrent effect on workers. It was found that the introduction of the DAP was not “unjust or unreasonable” and that the FWC should only interfere if the outcome for employees had such effect. As the dispute before the FWC only relates to the Virginia, Queensland site, it remains to be seen whether Arnott’s will implement the policy at its sites in South Australia and New South Wales.
The decision illustrates the importance of ensuring any drug or alcohol policy is carefully tailored to your workforce and industry, bearing in mind the intricate balance between safety and employee privacy.
Read the full decision here: Arnott’s Biscuits Ltd v United Voice (C2017/5610)
If you have any questions relating to implementing effective and tailored workplace safety procedures please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.