The Courts continue to struggle with the competing interests of employers in meeting their OHS obligations to ensure the health and safety of its workforce and an employee’s right to privacy, when it comes to drug testing in the workplace.
In a recent decision of the Australian Industrial Relations Commission involving Shell Refining (Australia) Pty Ltd and the CFMEU, the AIRC held that urine drug testing was simply too intrusive into an employee’s privacy and was not justified.
The AIRC held, however, that oral drug testing was acceptable.
Oral drug testing is limited in its detection of the use of illicit drugs to hours before the test is conducted, whereas urine drug testing can detect the use of illicit drugs in days prior to the test.
The AIRC held that urine drug testing, whilst more likely to detect illicit drug use, would more likely than not detect drug use whilst the employee was not at work.
It was held in the circumstances that this was not relevant and, therefore, not acceptable.
The decision is significant in recognising and protecting an employee’s privacy whilst allowing employers to conduct tests of its workforce, during working hours, to ensure that it complies with its stringent OHS obligations.
Employers should be mindful that the right to drug test does not arise out of right. The circumstances of the employee’s position and the inherent requirements of that position will dictate whether or not drug testing is appropriate and indeed permissible.
If you are unclear of your right to drug test employees contact our Workplace Relations Team.
Author: Herbert Fischbacher
