The Electrical Trades Union said the decision confirmed two previous court rulings, including by the full bench of Fair Work Australia, that found the use of urine testing was “unjust and unreasonable” because it could detect drug use from days earlier, rather than more recent use that could lead to impairment at work.
Endeavour Energy launched the latest legal action in October, with the matter heard in the Fair Work Commission in December. The company was attempting to vary the original decision, which required the use of oral testing, with urine-based testing.
ETU NSW deputy secretary Neville Betts said the decision, handed down late last week, highlighted that the role of drug and alcohol testing in the workplace should be about identifying potential impairment, rather than disciplining staff for private actions taken in their own time.
“This is the third time the courts have ruled in favour of the ETU on this issue, despite Endeavour Energy spending hundreds of thousands of dollars in an attempt to force urine testing on their staff,” Betts said.
“In this latest case they attempted to use a licensing technicality to overturn the previous decisions and bring in their preferred urine testing model.
“This most recent decision absolutely cements this legal precent that has wide-ranging ramifications not only for the electricity sector, but for every industry that carries out drug and alcohol testing, in particular mining, aviation, transport and emergency services.
“In recent years, drug testing of employees has become increasingly common, both in the public sector and private enterprise, which is why making sure the practice is done as fairly as possible is so important.
“While oral testing accurately identifies recent drug use, where an individual may be impaired in their abilities, urine tests unfairly monitor workers’ private lives by potentially showing a positive result even where a substance may have been used many days prior, in a private capacity.”
After three legal battles, and three losses, the ETU said it was calling on Endeavour Energy and the NSW government to “finally accept the court’s decision and rule out the use of taxpayers money on further appeals”
