Safety trumps privacy when it comes to drug testing

In a win for employers, Commissioner Cambridge has upheld an employer's right to randomly test employees for drugs and alcohol by both oral and urine sampling in Forestry Mining and Energy Union v Port Kembla Coal Terminal [2015] FWC 2384

Ashurst has written an article "Best of both worlds" - Urine and saliva testing in the workplace on the case. They also acted for the employer in this instance.

Below are some of the outcomes from the case in relation to the Commission's stance.

1. It is recognised that combined, randomised drug testing is the superior deterrent compared to either method used in isolation.

2. In an either or scenario, oral fluid would probably be preferable to urine sampling.

3. Detection at levels meeting the relevant Australian Standard "expunges innocence". Even though the drug could have been used several days prior, the Commission is "unable to accept that a positive result would "in no way affect" capacity to perform work safely". This however may be a different case if an employer sought to impose a policy with cut off levels below the Australia Standard.

Below are statements from Commissioner Cambridge's conclusion:

[67] A detailed analysis of the competing positions has led me to conclude that the benefits that would be obtained by the adoption of both methods of sampling in random combination significantly outweigh any privacy detriments that could be identified.

[68] There are a range of important benefits that are derived from the random operation of both oral fluid and urine sampling. The use of both methods overcomes the scientific and technological deficiencies that each method cannot avoid if one method is used in isolation. Further, the use of both methods provides significantly enhanced deterrent properties. Against these significant attributes the alleged privacy intrusions are matters of little realistic consequence.

[69] In summary, a blunt distillation of the contest in this case and its determination can be described as a choice between private lives or saving lives and I have opted for saving lives. - Commissioner Cambridge

Ashurst, in their summary notes the importance of this case in relation to any future challenges to urine sampling. They also note also that the Commission takes the welfare of the employees above privacy of the individual which may potentially have some interesting cross over implications into other employee privacy matters.

Commissioner Cambridge decided that while positive oral fluid and urine samples tend to indicate different things, each test still has advantages. He also found that if it comes to a choice between the welfare of employees generally and the right of an individual employee to privacy, employee welfare should be given priority. The reasoning is compelling. Absent any significant developments in the science associated with drug testing, and provided there is no modification of it by a Full Bench, this decision is likely to be the benchmark in any future challenges to urine sampling. - Geoff Giudice