Fair Work Australia has upheld a mining company's bid to continue testing workers' urine for drugs and alcohol, after it found the reliability of saliva testing was questionable.
Vice President Michael Lawler described the currently available on-site screening devices for saliva as "materially less reliable" than on-site urine testing.
He found HWE Mining Pty Ltd was right to vary commitments it made in its drug and alcohol policy and retain "a role" for urine testing.
HWE introduced random on-site urine testing as part of its 2003 drug policy. After negotiations with the CFMEU, it agreed to move to saliva screening once an Australian Standard on oral tests was introduced.
A Standard was published in November 2006, and the CFMEU had pressed HWE to cease urine testing since.
The union argued that with saliva tests there was a closer correlation between a positive test result and actual impairment for work.
It said that on-site urine testing could produce a positive result for cannabis many days after consumption and long after impairment had ceased. It said this intruded on employees' privacy.
HWE argued that saliva testing had "unacceptable inadequacies" compared to urine testing, and that its "overriding" OHS duties required it "to refuse to move to saliva testing exclusively".
Oral screening linked to false negatives
Vice President Lawler accepted expert evidence indicating oral screening was flawed.
He found that:
- saliva testing devices were linked to a "significant incidence" of false negative results for some drugs, including cannabis;
- a large number of Victorian motorists who tested positive to cannabis in laboratory tests after accidents had returned a negative result in the roadside saliva test;
- on-site saliva testing devices had a low sensitivity for cannabis and their effectiveness could be reduced by the use of particular substances; and
- there was no Australian Standard to saliva test for the prescription sedative benzodiazepine. On-site saliva tests could only detect high concentrations and could not detect levels where users would be impaired.
In the light of these matters, HWE was "eminently reasonable" in its bid to retain urine testing, Vice President Lawler said.
He said it was "reasonably open" to an employer to want to ensure its drug screening was as reliable as possible.
"The materially higher incidence of false negatives with on-site saliva screening and the greater scope for defeating existing on-site saliva screening tests are particularly significant," he said.
Vice President Lawler also noted that HWE's earlier commitment to move to saliva testing did not limit its "managerial prerogative" to vary its drug and alcohol policy.
