NSW Government-owned energy company loses Fair Work bid for urine samples in drug testing

An energy company owned by the New South Wales Government has lost a bid to conduct urine tests on its employees, after the full bench of Fair Work Australia upheld a previous decision yesterday.

Legal experts say the ruling should remind businesses of their own obligations when it comes to drug testing and the situations in which it is appropriate.

“First and foremost, you have to have a genuine reason related to efficiency or operational safety,” legal expert Peter Vitale told SmartCompany this morning.

The full bench of Fair Work Australia yesterday upheld an earlier court ruling and denied Endeavour Energy the ability to conduct urine tests on its employees.

The previous ruling had already found that the tests were “unjust and unreasonable”. This is because they could detect drug use that had occurred several days before testing had taken place. Saliva swabs were put forward as a better option.

The previous ruling stated urine tests were not as effective because ”a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely”.

Endeavour Energy said all the benefits of urine testing weren’t actually considered, but Fair Work dismissed those concerns. It upheld the previous judgment, to the delight of the unions which brought the case against the company.

The Rail Tram and Bus Union even said they would use the ruling as part of a basis for new workplace agreements. The secretary of the Electrical Trades Union in New South Wales, Steve Butler, called on the NSW Government to stop further appeals to the Federal Court.

Vitale says the decision highlights the need for employers to be educated about how drug tests work and who can use them.

“Mining is obviously an industry where drug testing is accepted and widespread,” he says. “I don’t think unions, as a matter of principle, object to drug testing, just the way it’s implemented.”

“The next step for employers is obviously to be knowledgeable about the different types of drugs and alcohol, tolerable limits, and so on. You also need to make sure any testing regime is sound and not subject to interference.”

“And, in the event of a change, businesses need to ensure their policies are carefully detailed and the policy is understood by the employees.”