Fair Work Australia has upheld a decision prohibiting a state-owned energy company from conducting urine tests on its employees, agreeing that it is “unjust and unreasonable” to effectively test for drug use that may take place outside work hours.
Endeavour Energy has been involved in a long-running dispute with unions over drug testing methods for its employees.
Fair Work Australia ruled in March that Endeavour should not be allowed to conduct urine tests because the tests could show a positive result from drugs taken days earlier or at the weekend, when the employee was not working.
The senior deputy president of Fair Work Australia, Jonathan Hamberger, said it would be more appropriate for the company to use oral swabs to test for drugs, which generally detect substances taken in the preceding hours and were a better measure of impairment at work.Advertisement
Unhappy with Mr Hamberger’s decision, Endeavour argued in its notice of appeal that it had a legal and social responsibility to determine whether staff were chronic drug users.
Today the full bench of Fair Work Australia upheld the earlier ruling.
“We have considered all that has been put in the appeal and we are not persuaded that Endeavour Energy has been able to establish any such error in relation to the senior deputy president’s decision,” they said.
“In the present matter the senior deputy president did not fail to consider the employer’s occupational health and safety obligations to take reasonable steps to minimise risk associated with employees being impaired by drugs such that their ability to work safely is compromised.”
Unions representing staff called on the state government to accept the decision and not appeal any further.
“Given that the court has now ruled in favour of saliva testing on two occasions, I am today calling on the NSW Energy Minister to rule out wasting any more taxpayer money by further appealing this decision to the Federal Court,” said Steve Butler, NSW Secretary of the Electrical Trades Union.
A spokeswoman for Endeavour Energy said the company would consider the safety implications of the decision before it decided whether to appeal further.
“Our advice to date has been that urine testing, and not oral swab testing, is the most accurate and effective way to detect the foreseeable risk of an employee being unfit for work due to chronic drug use,” she said.
”Endeavour Energy’s top priority is for all employees to return home safely at the end of each work day and not be exposed to harm from chronic drug users in the workplace.”
Endeavour Energy and NSW Energy Minister Chris Hartcher have been contacted for comment.