The Maritime Union of Australia v DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited (C2012/1405) [2014] FWC 1523 DEPUTY PRESIDENT BOOTH

In this “dispute resolution” the employer’s (DP World) drug testing regime was objected to by the unions (MUA and TWU).  There were also a number of technical issues, but the crux of the dispute was:

Saliva v urine testing; and

Two strikes and you’re out (current), three strikes and you’re out (union position).

The DP examined this case in great detail citing medical opinion on each drug group, and the contradictory opinions of the benefits of saliva v urine testing. Further commenting on what should happen when a “non-negative” result is found.

After weighing up (quite a number of pages) all the pro’s and con’s, the DP found (in part):

  • The method of testing for drugs in an initial random test (initial test) and a second test designed to confirm the results of the initial test (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.
  • In the circumstance that an individual returns a non-negative result in an initial and confirmatory test it would not be unjust or unreasonable for testing of that individual to be undertaken from time to time for a period of 6 months after return to work utilising oral fluid testing.
  • It is not unjust or unreasonable for a MUA delegate not to be present to observe the conduct of the random selection of individuals for testing undertaken by an independent third party provider using the Randomiser App.
  • In relation to disciplinary policy clause 6.5 of the Policy is not unjust or unreasonable in providing for “appropriate disciplinary action”. DP World should not rigidly apply any arbitrary rule concerning disciplinary action such as “two strikes and you are out” or “three strikes and you are out”.

Commentary

Drugs and alcohol in the workplace is not a new issue. Testing now has a national Standard, this is relatively new.

Employers should protect themselves from unsafe workers (drug affected individuals) by having in place:

  • Policies adopting the employer’s stance on such matters (ie I have seen “instant dismissal” to “rehabilitation”). These policies should be implemented in a fair and constant manner.
  • Contracts of Employment should allow for random drug testing/medical screening or at least where there is a “reasonable suspicion” that the employee may be medically unfit to work.
  • Induction programs should emphasise the consequences of policy breaches.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.