In a recent decision (AWU v Rocla Pty Ltd) the Fair Work Commission has upheld the right of an employer to reintroduce a policy of random urine testing after it had stopped the practice nine years earlier.
The company’s drug and alcohol policy had provided for random urine testing since 2005 but it had stopped conducting these tests in 2008 due to employee and union opposition. Although it chose to discontinue testing at that time – out of ‘industrial relations caution’ – the company retained a drug and alcohol policy which allowed for testing to occur. The union argued that random urine testing (as opposed to saliva and/or non-random urine testing) was an unnecessary invasion into employees’ private lives and, given the period that had elapsed since testing had stopped, the employer needed to consult on its reintroduction.
The FWC found that the ‘clear and unambiguous’ wording in the enterprise agreement permitted the company to reintroduce testing with no obligation to consult. It noted that employers do not have an ‘untrammelled right’ to introduce safety procedures and that consultation obligations under occupational health and safety legislation extend to safety policies and procedures and their amendment. However, it also noted that the company’s legislative consultation obligation had already been met and, in any event, was not itself an enterprise agreement related issue.
Whilst this decision was not ultimately one in which the FWC was required to look at the reasonableness of the random urine testing policy, it does serve as a reminder of the FWC’s preparedness to respect the use of managerial discretion.
The company’s decision not to enforce its right under the enterprise agreement did not result in that right being lost where the relevant enterprise agreement terms and testing policy did not materially change.
Employers should consider the reasonableness of incorporating random or non-random urine and/or saliva testing in its safety policy. This will depend on the circumstances and may be influenced by a number of factors including: the level of OHS risk in a business; standard practice in an industry; employee consultation in policy development and whether privacy concerns of employees outweigh an employer’s duty to ensure the safety of its employees.
Andrew Maher is our head of HR Law and Strategy at CIE Legal.