FWA full bench dismisses Endeavour Energy's urine-test appeal
Endeavour Energy has failed in its appeal against a Fair Work Australia decision to prohibit it from introducing random workplace urine testing as part of its new drug and alcohol policy.
In March, Senior Deputy President Jonathon Hamberger found - in a dispute between Endeavour and unions - that oral fluid testing was a more appropriate method for determining whether employees were under the influence of drugs such as cannabis at work.
On appeal, the employer told a full bench - Senior Deputy Presidents Alan Boulton and Matthew O'Callaghan and Commissioner Greg Harrison - that Senior Deputy President Hamberger failed to properly consider the merits of urine testing, was influenced by a non-expert witness, and failed to follow an earlier FWA case involving HWE Mining, which found saliva swabs were less reliable than urine tests.
But the bench yesterday found the circumstances in HWE Mining were different (because HWE had an established urine testing regime), and that it was "open and appropriate" for Senior Deputy President Hamberger to conclude that saliva tests should be adopted as part of the employer's policy.
The Australian Mines and Metals Association, which supported Endeavour's appeal, said the decision was another example of the Tribunal's "capacity to impact on an employer's ability to manage their own business".
"The findings will be of fundamental concern to the mining industry which has pioneered stringent safety measures and has a strong case for urine testing as the preferred way to manage occupational health and safety obligations at many worksites," the employer body said.
Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others  FWAFB 4998 (14 August 2012)