The Fair Work Commission has effectively paved the way for companies to conduct confirmatory urine drug and alcohol tests on workers who fail saliva tests after quashing a previous decision by a Deputy President of the commission on the issue.
Previous decision in favor of saliva test
Sitting with a full bench, the FWC reversed Deputy President Anna Booth’s previous decision to uphold the claim of the Maritime Union of Australia that the new national policy of DP World requiring employees who fail saliva tests to undergo confirmatory off-site urine tests was not consistent with a clause in the 2011 enterprise agreements that are in place at DP World’s ports in Sydney, Melbourne Brisbane, and Fremantle. She also stated in her decision that urine testing “may reveal personal choices of individuals that do not present a risk to safety in the workplace”. She then ordered DP World to instead resort to oral fluid collection for both initial and follow-up testing.
DP World then filed an appeal, claiming Booth did not take into consideration the fact the company had been using urine tests even before 2011, and that she erred in deciding to assess the merits of urine testing. The bench, composed of Vice President Joe Catanzariti, Senior Deputy Presidents Ian Watson and Jonathan Hamberger, Deputy President John Kovacic, and Commissioner Donna McKenna agreed with DP World’s claim, saying Deputy President Booth “fell into significant error” in her assessment of the merits of urine testing.
According to the bench, Deputy President Booth should have taken a closer look at the surrounding circumstances and context before determining the dispute.
Click here to read the FWC decision in full.