Shell Refining (Australia) Pty Ltd, Clyde Refinery v CFMEU [2008] AIRC 510

07 October 2009

Source: http://www.mondaq.com/australia/article.asp?articleid=87230

There is a fine line to be drawn when randomly testing for evidence of drugs and/or alcohol impairing an employees' fitness for work. An employer is often criticised for entering the realm of an employee's private life. Urine based testing methods have been criticised for detecting drugs and alcohol which may have been ingested by the employee in the previous days (such as the weekend) which may not impair their work performance. New oral fluid testing is a more accurate method of testing for impairment and therefore gauging an employee's fitness for work.

This dispute arose as a result of concerns that CFMEU had with certain aspects of the drug and alcohol policy (D&A Policy) that Shell wished to introduce as its Clyde Refinery and Gore Bay Terminal. Specifically, the use of urine testing devices in 'random drug and alcohol testing' (RDT) in the D&A policy. This case concerned a decision made by the Australian Industrial Relations Commission (AIRC) under an alternative dispute resolution procedure agreed to by the parties.

The role of the AIRC was to consider whether it would be unjust or unreasonable for Shell to:

Implement RDT of operators under its D&A Policy using urine as opposed to oral fluid testing.

Apply RDT under its D&A Policy to operators at Clyde Refinery and Gore Bay Terminal unless such testing is applied to all Shell employees at those two locations.

Apply RDT under its D&A Policy to operators at Clyde Refinery and Gore Bay Terminal unless such all employees of contractors engaged at those two locations are subject to such testing.

The AIRC found, based on the expert evidence submitted, that:

Significant impairment to perform work functions only occurs for a few hours after the ingestion of drugs.

While both oral fluid and urine testing will usually pick up anyone who has taken drugs in the previous few hours (and thus may well be impaired), urine testing will also pick up employees who have ingested drugs over the previous few days and are thus unlikely to be impaired at the time of testing.

Urine testing will not indicate when the drugs were taken.

The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health and safety.

Beyond that the employer has no right to dictate what drugs or alcohol its employees' take in their own time.