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Stuffed or Stoned?

By Jim Nolan, Barrister, Denman Chambers, Sydney

In a recent dispute at the South Blackwater Coal Mine in Central Queensland CFMEU members resisted the introduction of random drug testing in the absence of a better strategy to test impairment and not just lifestyle.

Random drug testing does not measure impairment - merely the existence of traces of previous drug use. In the case of a 'recreational drug' like marijuana, an employee who may have been exposed to the drug at a weekend party could test positive on Monday yet show no other signs of impairment. On the other hand, an employee who has worked repeated twelve hour shifts may display tangible signs of impairment from fatigue, yet this is not recorded by random drug testing.

In the course of the dispute South Blackwater Coal stood down CFMEU members who declined to submit to the random test. CFMEU members took industrial action in response. In a decision which was scathing of the company's actions, Commissioner Bacon of the AIRC in Brisbane found South Blackwater Coal had breached the certified agreement by unilaterally introducing the random drug testing scheme without following the steps in the disputes settlement clause.

Blackwater Coal still directed employees to take the test and were met with a blanket refusal. It maintained its position that the direction was lawful and reasonable. Employees were stood down and the matter returned to the Commission. A marathon session resulted in a truce with drug testing likely to be an interim measure pending the introduction of proper fatigue testing. In the meantime the CFMEU will prosecute the company for the unpaid wages during the stand down.

This is just the latest example of numerous disputes which have broken out surrounding random drug testing.

Although employees and their unions have acknowledged the need to keep under constant review measures to ensure worker safety, they have bridled at the privacy-intrusive nature of random drug testing. Testing means that employees are compelled to provide a urine sample on demand under the threat of discipline and dismissal.

Many have regarded the embrace by employers of random drug testing as a 'quick fix' which ignores more significant worker safety issues. A union website in the US has pithily crystallised the double standard which many see as being involved in the fashion for drug testing:

'Under the guise of concern for their employees safety and health, a large percentage of employers are now demanding the right to conduct some sort of drug and alcohol testing. To most workers this smacks of hypocrisy. The same employers who routinely demand mandatory overtime or wage cuts or expect the workforce to handle highly toxic substances suddenly are professing concern for workers. Most employers see drug and alcohol testing as just another hammer to hold over the heads of the employees. '[www.ranknfile-ue.org]

Employees and unions have questioned why random drug testing has assumed such priority in an industrial climate where increasing demands have been placed upon workers to work twelve hour shifts. Evidence suggests that it is fatigue and not impairment through drug and alcohol abuse which leads to the majority of accidents.

The issue of random drug testing of employees came squarely before an Australian industrial tribunal for the first time back in 1998. (BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards Sawmills and Woodworkers Union of Australia Western Australian Branch)

In late 1997, a programme of random drug testing was proposed by BHP in its iron ore activities in the Pilbara in the north west of Western Australia. The proposed programme followed upon extensive discussion with unions and employees but met with the strident opposition of one of the significant unions at the site, the CFMEU. In the absence of consensus, BHP submitted its programme to the Western Australian Industrial Relations Commission [WAIRC] for its approval.

Random drug testing was the controversial component of the scheme. This was summarised succinctly by the WAIRC as follows:

The most controversial aspect of the Programme is that part which involves testing for drugs. In essence, the Programme requires that an employee, as a condition of employment, submit to random testing of a sample of the employee's urine. If such a test proves positive the employee concerned, on the first occasion, is liable to be sent home on paid special leave; on a second occasion within a period of two years, is liable to be sent home on unpaid special leave; and on the third occasion within the same period, further employment of the employee with the Company will be the subject of discussions.

The penalty for a positive test is relatively benign in that three positive tests within a two year period are necessary before dismissal is considered.

It is also worth noting that BHP was prepared to depart from the Australian Standard in its own drug testing programme. It prescribed a level of cannaboid metabolites (i.e. marijuana) necessary to record a positive test result at twice the level recommended in the Australian standard. This departure was plainly directed to address the privacy concerns expressed by workers and their unions. Concerns were raised about the exposure via drug testing of occasional or 'social' marihuana users. Traces of marihuana use remained in the users body for extended periods. Accordingly there was a real chance that a casual user who experimented with marihuana at say, a weekend party, could return a positive test the following Monday morning yet there would be no chance that the person would be impaired.

BHP argued that the programme was necessary to enable it to satisfy its obligations under the Mines Safety and Inspection Act 1994 and regulations and to enable it to satisfy its common law duty to provide its employees with a safe workplace. The Mines Safety and Inspection Regulations 1995 prohibit anyone from being in or on a mine while the person is adversely affected by intoxicating liquor or drugs. They entitle a mine manager or supervisor to direct any employee reporting for duty who, in their opinion, is adversely affected by intoxicating liquor or drugs to leave the mine immediately (Regulation 4.7).

It was conceded that the proposed drug tests were not a test of impairment, but it argued that the 'cut off' levels of drugs allowed under the programme before a positive result is returned are at such levels that a positive result is a good indicator of there being a real risk of impairment. This was a critical feature of the programme as it raised substantially the levels for a positive test result for marihuana. This was in excess of the Australian Standard and blunted the attack that occasional, casual marihuana use might be detected and used against the employee.

BHP also acknowledged the privacy concerns raised by the CFMEU and pointed to strict security measures designed to avoid publication of any test result and any other information given as part of the programme, including information regarding prescription drugs.

In addition to evidence from BHP management and union delegates, the WAIRC heard expert evidence from the company and the union.

After a comprehensive discussion of the issues, the Full Bench ruled that the proposed drug testing programme was reasonable in the circumstances, given the high degree of consensus reached at the workplace (apart from the CFMEU) and the safeguards against capricious utilisation of a positive result. Most important, was the acknowledgment of BHP's commitment to review its policy where new developments promised less intrusive testing methods.

Those new technologies are now more available than was the case when the Full bench decision was given. New fatigue monitoring systems now provide a real threat to the widespread acceptance and implementation of random drug testing. These systems have two major features in common. First, they measure actual impairment rather than the existence of drug metabolites in the system. Secondly, they measure impairment by less intrusive means.

The workers at South Blackwater raised these testing systems as being infinitely preferable to the random drug testing. They are currently being used in other coal mines in Queensland and their effectiveness will be monitored by the CFMEU.

There are two impairment monitoring systems now being utilised by Australian employers in preference to random drug testing The 'OSPAT' system and Fit 2000.

OSPAT utilises a computer with a track ball which requires workers to undertake a simple exercise before commencing their shift. A series of exercises undertaken when the system is first installed establishes a 'base line' against which a worker's reaction times are measured.

Similarly, Fit 2000 measures a worker's reactions against a 'base line' by measuring the flicker of the worker's eyes.

Neither system involves the taking of body samples on a random basis. Workers are only required to undertake drug tests if they fail the reaction tests. These tests are true measures of impairment produced by fatigue as well as impairment due to drug and alcohol use.

These impairment measurement systems are competitors in the market place and as such, claims about their effectiveness must be viewed with due circumspection. Nothing in this article should be taken as an endorsement of either system.

It may be expected however that if the claims of the superiority of these non intrusive systems are proven, employees and their unions will press strongly for the replacement of random drug testing by impairment testing.

It may be that the very rapidity of developments in technology which has produced the present threats to privacy will in time, throw up real solutions to the issue of the privacy intrusion involved in random drug testing.

In the meantime, the South Blackwater CFMEU members will continue to press their claims for impairment testing in preference to random drug testing.

[Jim Nolan appeared as counsel for the CFMEU in the South Blackwater dispute]

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  Issue 71 contents

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»	Mario Carries Torch For Workers
»	Union Flag Flies High At Olympic Park
»	International Passport for IT Workers
»	Homecarers Strike Another Blow Against Outsourcing
»	Alliances The Legacy of S11 Say Protestors
»	Violence Rife Against Union Activists
»	Call Centre Workers Compo Call Answered
»	Better Pay, Big Screens and Ice Cream for Bus 2000 Drivers
»	'Appalling' Detention Centres Behind Riots
»	Election of Burmese Official A Slap In The Face

»	Away For The Games
»	Sport
»	Labour Review
»	Tool Shed

»	Listen To The Young

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