This is a fascinating decision as it shows the long way the industry has to go in offering comprehensive testing solutions. At best a company can assume it’s usually ok to do oral fuid testing and that some urine testing might be acceptable when testing regimes are up to par.
The summary of the decision:
AIRC Decision on “Implementation of random drug testing: use of oral fluids or urine as specimen for testing”
On 25 August 2008 in the Australian Industrial Relations Commission, Senior Deputy President Jonathan Hamberger, handed down his decision in the case of Shell Refining (Australia) Pty Ltd, Clyde Refinery versus the Construction, Forestry, Mining and Energy Union regarding the matter of “Implementation of random drug testing: use of oral fluids or urine as specimen for testing”.
In a private arbitration, which both parties agreed to waive confidentially, and consented to the decision being made public, Senior Deputy President Jonathan Hamberger, said the question at stake was:
“… Whether it would be unjust or unreasonable for the company to implement a urine-based random testing regime with its wide ‘window of detection’, with all that implies for interfering with the private lives of employees, when a much more focussed method is available, where a positive test is far more likely to indicate actual impairment, and is far less likely to detect the use of drugs at a time that would have no consequential effect on the employee’s performance at work.”
In his conclusion “… that the implementation of a urine based random drug testing regime in these circumstances would be unjust and unreasonable … ” , Senior Deputy President Hamberger gave two qualifications to his decision. The first was that no Australian laboratories were yet accredited for oral fluid testing under the relevant standard [not-for-profit company RASL gave evidence that it would shortly seek accreditation], and Shell could not be expected to implement its system until they were.
The second was that there were drugs (such as benzodiazepines) for which the relevant standard did not contain target concentration levels. Shell, he said, again could not be expected to implement an oral fluids based regime until it had the agreement of the union and the laboratory it would use on what other drugs it wished to test for and what would be an appropriate target concentration level.
Senior Deputy President Hamberger said that once these two issues were satisfactorily resolved, any random drug testing should be conducted using oral fluids. Until then, it would not be unreasonable for the company to implement a urine-based testing regime on an interim basis.
The full ruling can be found here.
Thanks to ADCA for the heads-up.
The AIRC decision will result in the end of intrusive urine based drug testing that shows absolutely no evidence of any level of impairment. As Deputy Hamberger stated “on an interim basis” could urine testing be performed, it is clear that all concerned knows that it is only allowed on safety grounds but will be deemed unreasonable in the very near future, in favour of saliva testing to AS4760.
One other point that I can see in Hamberger’s decision as an argument for employees is that Hamberger allowed urine testing because the Australian labs are not yet accredited to Australian standard AS4760. To me this means that Hamberger deemed urine testing to AS4380 as being reasonable since labs are qualified to AS4380 however, employer’s should ensure that their own drug testing regime stands up to scrutiny of the Australian standards. A single broken link in the “chain of custody” of the urine sample is as good as a null & void test.
The decision of Hamberger was based on the fact that Shell Refining adhered to AS4308. If it wasnt prepared to adhere to the standard, Hamberger’s decision may well have been to only allow saliva screening.