Urine drug testing confirmed to be ‘unjust and unreasonable’

In the recent decision of Maritime Union of Australia v DP World Brisbane Pty and others [2014] 1523, the Fair Work Commission (FWC) has once again ruled in favour of saliva drug testing as being a more appropriate method of drug testing in the workplace, when compared to other more intrusive methods.

The decision centred around a dispute between the Maritime Union of Australia (MUA) and a number of DP World group entities (DP World) over certain provisions in DP World’s proposed national drug and alcohol testing policy, which was intended to apply broadly to cover all types of workers including the stevedoring employees represented by the MUA.

In particular, the disputed terms of the proposed policy specified that if the results of an employee’s oral drug test showed positive, then a subsequent urine test (as opposed to a subsequent oral test) would be required for confirmation purposes.

The MUA’s position in the dispute was that urine testing should not be incorporated into the policy due to the fact that its terms did not accord with a certain negotiated provision contained in an enterprise agreement between the parties, which stated:

“The parties acknowledge that the Company’s drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

The MUA interpreted the above provision as meaning that the only drug testing regime permissible under the policy was by means of oral swab testing. As a result, the MUA sought orders from the FWC requiring DP World to consult with them regarding the development of a new policy that would reflect such an interpretation.

In response, DP World argued that the way in which the term in the enterprise agreement was drafted did not rule out other forms of testing.

The FWC ultimately agreed with the MUA’s strict reading of the provision, and further found that urine testing was “unjust and unreasonable” in light of the evidence submitted by both parties. In reaching this decision, the FWC explained that the use of urine testing as a second test following a non-negative oral test would, “compromise employee privacy with no gain to reduction in risk to safety” in revealing intrusive information about an individual’s lifestyle rather than their ability to work.

The FWC also made the following conclusions, which are important to note:

  • The most appropriate method of testing in an initial random test and second confirmatory test is to be by way of oral fluid and not urine.
  • Confirmatory tests for drugs are to test for the same drugs as the initial test.
  • Where an individual returns a positive result in an initial and subsequent confirmatory test, it would not be unjust or unreasonable for further saliva testing of that individual to be undertaken from time to time for a period of up to 6 months after return to work.
  • It is not unjust or unreasonable for a union representative to be excluded from observing a random drug test selection process that is undertaken by an independent third party provider.
  • It is not unjust or unreasonable for a union representative to be excluded from observing the conduct of an initial drug test.
  • It is appropriate for an individual whose initial drug test shows positive to have the right to request the presence of a union representative for the conduct of any subsequent confirmatory test.

First look at bullying orders

The Fair Work Commission (FWC) has published its first ‘stop bullying’ order under the new bullying regime.

In Applicant v Respondent (AB2014/1052), a number of orders were made by agreement, following a conference. Those orders encompassed the applicant and the alleged perpetrator (respondent) arranging staggered arrival times (requiring the respondent to finish exercise at the employer’s premises before 8am, and that the applicant not arrive before 8.15am) . Otherwise, the orders included that that the respondent will not have contact with the applicant alone, will not make any comment about the applicant’s clothes or appearance, and will not send emails or texts to the applicant except in emergency circumstances.

Nature of orders

This matter provides a first look at the types of practical orders that the FWC might make in the context of a complaint under new bullying laws that commenced on 1 January 2014.
This is where the FWC has the power to make any order it considers appropriate to remedy or prevent the bullying from occurring (but excluding a monetary award).

In this instance, the FWC’s orders specify a number of administrative controls designed to stop the applicant and respondent from being in direct contact. Staggered start times, and restricted contact might work well in a larger workplace. However, it is foreseeable that the types of orders made above might be difficult to comply with in a smaller workplace, both in terms of a smaller physical space or smaller headcount.

Interestingly, the orders are not bound in time. Although, the parties have liberty to have the matter relisted “should there be any difficulty with the implementation of the Orders”.

Whilst the FWC cannot make monetary orders in connection with a complaint, an individual can attract a monetary penalty for breaching an order of the FWC. This should inform parties’ agreement to certain orders taking account of whether orders are capable of being complied with in practical terms.

Parties to orders such as those described above should also be mindful to have a matter relisted if they anticipate breach due to underlying business circumstances, rather than simply allowing a breach to occur. 

New Anti-bullying Laws – Early Observations

In November 2013 we wrote about the Fair Work Commission’s (FWC) new anti-bullying jurisdiction which commenced on 1 January 2014 (see Anti-bullying laws – preparing for the great unknown)

In December 2013, the FWC predicated that it would receive approximately 3500 bullying claims in 2014, with some commentators expecting a flood of complaints to the FWC.

So what has happened so far?
In early February, the FWC released a report noting that to that date, the FWC had received only 44 bullying complaints.

Six of those applications were withdrawn during the “preliminary assessment process”, and the FWC had started to deal with the complaints within 14 days of receiving them. One bullying complaint has also been dismissed as a result of the complainant’s failure to comply with procedural requirements, and failure to provide further information when requested, see B.D [2014] FWC 1019 (12 February 2014)

Since the FWC’s February report was released, it has been revealed that a high proportion of the claims lodged to date have been claims made by subordinates against managers, making the complaints susceptible to findings that the bullying complained of was in fact  “reasonable management action”.

Late last week, a full bench of the FWC reserved its judgement about whether a complainant could lead evidence about bullying alleged to have occurred prior to 1 January 2014, when the new laws commenced.

Food for thought
It will be interesting to monitor whether the number bullying complaints increase to previously predicted levels.

It is likely that the following factors will affect the number of overall complaints:

• no payment or monetary amount can be awarded by the FWC;
• if the FWC is to make an order, it must be satisfied of a continuing risk of bullying in the workplace. Practically, this means that a person making a complaint must still be employed in the workplace to which the complaint relates; and
• many employers have since focused resources on ensuring their internal bullying policies and procedures are effective in stopping reported bullying and ultimately circumvent the need for employees to make a complaint with the FWC.

Notwithstanding, it is still early days, and most employers are keen to understand the full impact of the new jurisdiction, as is HResource. We will keep you posted.