Holcim (Australia) Pty Limited v. Transport Workers' Union of New South Wales [2010] NSWIRComm 1068

Industrial Relations Commission (NSW)|2010-12-23|Before: Giudice P

CITATION: Holcim (Australia) Pty Limited v. Transport Workers' Union of New South Wales [2010] NSWIRComm 1068

APPLICANT Holcim (Australia) Pty Limited PARTIES: RESPONDENT Transport Workers' Union of New South Wales

CATCHWORDS: industrial dispute - transport industry - contract drivers - supply of ready mix concrete in agitator vehicles - drug and alcohol testing - workplace and road occupational health and safety - contest between urine samples and oral testing for drugs - expert evidence - desirability of proper accreditation for testing - urine testing preferred - application for variation to contract determinations rejected at this time - direction for further discussions

Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Passenger Transport Act 1990 Rail Safety Act 2008

BHP Iron Ore Pty Limited v. Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 Caltex Australia Limited v. Australian Institute of Marine and Power Engineers [2009] FWA 424 Refinery Operators Shell Refining (Australia) Pty Limited Award Case [2008] AIRC 510 CASES CITED: Ruddell v. Camberwell Coal Pty Limited [2010] FWA 8436 Shell Refining (Australia) Pty Limited v. Construction, Forestry, Mining and Energy Union [2009] AIRCFB 428 Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No.2) Case (2006) 158 IR 17 WorkCover Authority of New South Wales v. Hitchcock (2004) 135 IR 377

HEARING DATES: 27/10/2010, 28/10/2010, 03/11/2010, 04/10/2010, 02/12/2010

APPLICANT Bruce Miles LEGAL REPRESENTATIVES:

RESPONDENT Andrew Metcalfe

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Holcim (Australia) Pty Limited and the Transport Workers' Union of New South Wales

Notification under S.332 of the Industrial Relations Act, 1996 re random drug and alcohol testing

[2010] NSWIRComm 1068
Introduction

1 This dispute concerns the issue of drug and alcohol testing in the transport industry. The matter has a lengthy history which has involved many attempts by the parties to resolve by conciliation which have ultimately proven to be fruitless. The matter commenced on Tuesday, 2 October, 2007 with a notification of an industrial dispute pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [S.332], of the 1996 Industrial Relations Act. The resolution of the issue in dispute has been complicated principally by two matters, viz:

(i) The operations in question - the supply of ready mixed concrete by contract drivers of concrete agitators - have moved initially from Readymix Holdings Pty Limited to Rinker Australia Pty Limited who lodged the S.332 notification in the first place and then to Cemex Australia Pty Limited which took over the operations and subsequently Holcim Australia Pty Limited which ultimately took over the operations from Cemex.

(ii) It was considered appropriate for some time to await the decision in similar proceedings in the Federal industrial jurisdiction - firstly, before Hamberger SDP of the former Australian Industrial Relations Commission whose decision on the matter was handed down on Monday, 25 August, 2008 in the Refinery Operators Shell Refining (Australia) Pty Limited Award Case (2008) AIRC 510 and then subject to appeal to the Full Bench of the Australian Commission (Giudice P, Harrison SDP and Larkin C) whose decision in Shell Refining (Australia) Pty Limited v. Construction, Forestry, Mining and Energy Union (2009) AIRCFB 428 was handed down on Friday, 15 May, 2009.

2 At issue in these proceedings is the drug and alcohol testing regime that has been introduced nationally by Holcim. An industrial dispute had initially arisen between Rinker and the Transport Workers' Union of New South Wales over Rinker's proposal to implement a programme of random drug and alcohol testing for contract drivers engaged by Rinker. The S.332 notification was lodged for and on behalf of Rinker and the matter was allocated to me.

3 Whilst the TWU and the contract drivers do not oppose random drug and alcohol testing for the contract drivers, there is a concern over the conditions under which that testing is to be conducted. Simply stated, the issue in dispute centres chiefly around the type of testing to be performed. Rinker (and later Cemex and finally Holcim) proposed that urine samples be taken but that was opposed by the TWU which had proposed instead oral testing - saliva swabs. The TWU argues that oral testing is less intrusive and more convenient than the urine sampling method and it is its view that oral fluid more accurately reflects recent drug use and the consequent risk of impairment of the drug user in driving his vehicle and is therefore the more reliable test to apply.

4 I set the matter down for the first of many conferences required by S.315 on Friday, 5 October, 2007 but conciliation failed to settle the matter at that time. I programmed it for arbitration in a hearing on Tuesday, 11 December, 2007 and Wednesday, 12 December, 2007 but vacated those dates when there were delays in responding to my directions for the filing of evidentiary material on the part of Cemex, which had carriage of the matter at that time and had inherited the S.332 notification. I set the matter down for a further mention and for programming instead on Friday, 29 February, 2008 and ultimately for a hearing scheduled for Monday, 26 May, 2008.

5 That hearing did not proceed, however, and in subsequent proceedings before me on Monday, 16 June, 2008 and Thursday, 24 July, 2008 I made further directions concerning this matter and rescheduled a hearing on Monday, 27 October, 2008 and Tuesday, 28 October, 2008. Further discussions were taking place in the interim concerning general features of the drug and alcohol policy of Cemex but the issue in dispute still centred around the type of testing - urine sample or saliva testing. The entire policy being implemented was up for review in the meantime.

6 In light of a request made for and on behalf of Cemex to amend the directions I made concerning this issue, I reconvened the proceedings on Wednesday, 20 August, 2008. I convened further mentions and conferences on Tuesday, 28 October, 2008, Wednesday, 19 November, 2008, Wednesday, 11 February, 2009, Thursday, 9 June, 2009, Wednesday, 9 September, 2009 and Wednesday, 30 September, 2009. There was a further conference for conciliation (unsuccessful) on Monday, 2 November, 2009 and mentions on Friday, 25 November, 2009 and Thursday, 17 December, 2009. A hearing was arranged again on Wednesday, 31 March, 2010 and Thursday, 1 April, 2010 but it was vacated again at the request of the parties and mentioned again on Thursday, 13 May, 2010.

7 In the proceedings on Thursday, 13 May, 2010 I made directions to bring this long outstanding matter to a conclusion. Holcim, which had taken over the operations in the meantime and adopted the S.332 notification had provided a statement outlining its position. I directed that the TWU respond with its own statement concerning the issue by no later than Thursday, 3 June, 2010 (and, following a suggestion by the TWU that there be further conciliation, I set the matter down for a further conference on that day). But I did not wish to depart any further from the programme proposed by Holcim in the proceedings on Thursday, 13 May, 2010. To that extent, Holcim was to file and serve its evidentiary material by no later than Monday, 14 June, 2010 and further expert evidence by Thursday, 1 July, 2010. The TWU was to have until Thursday, 12 August, 2010 to file and serve all affidavit evidence (including expert evidence) in reply and Holcim's response to that material was to be provided by Thursday, 9 September, 2010.

8 On Monday, 31 May, 2010 the TWU wrote to me informing me that it had requested from Holcim its drug and alcohol policy, which it regarded as essential to prepare its statement. It requested an adjournment of the conference until Thursday, 10 June, 2010 and for it to be given until that date for it to provide its statement. Solicitors representing Holcim wrote in reply to the TWU indicating that Holcim drug and alcohol policy remains unchanged since it was earlier provided to the TWU and it was opposed to the adjournment of the proceedings. However, the solicitor indicated that if I did grant the extension of time for the TWU to provide its statement and to adjourn the conference until Thursday, 10 June, 2010, it wished to preserve the remainder of the directions I have made. I acceded to that request.

9 Ultimately, I set the matter down for further mention and programming on Friday, 9 July, 2010. Because much of the dispute between the parties centred around the evidence of experts called in support of the conflicting positions, I had suggested to the parties that they consider that evidence being adduced concurrently which I believed would have streamlined the proceedings and crystallise and confine the issues actually in dispute between the parties. However, for such arrangements to be put in place some preliminary steps would need to have been taken: some agreed position between the expert witnesses prior to the proceedings and a more interventionist approach by me. That suggestion for concurrent evidence was not ultimately pursued, however.

10 I set the hearing down over five days - Wednesday, 27 October, 2010, Thursday, 28 October, 2010, Wednesday, 3 November, 2010 and Thursday, 4 November, 2010 (for evidence) and Thursday, 2 December, 2010 (for final submissions). In the hearing Mr Miles represented Holcim and Mr Metcalfe represented the TWU. Annexed to this decision is a list of the witnesses called to give evidence in the hearing.

11 Holcim engages 140 contract drivers of agitator vehicles in the supply of ready mixed concrete in New South Wales. The bulk of the contract drivers (102 contract drivers) operate throughout the Sydney metropolitan area but there are also contract drivers in regional area of the State - Newcastle (10 contract drivers), Wollongong (13 contract drivers), the Northern Rivers area - Grafton to Brunswick Heads (4 contract drivers and a further contract driver of a mini vehicle) and the Tweed River area (11 contract drivers). Their task involves mixing concrete, transporting it and delivering it to customers on request in concrete agitator vehicles.

12 The specific elements of the tasks performed by the Holcim contract drivers are detailed in a series of job safety assessments [JSA's] which are reviewed annually. It is trite to suggest that there are inherent safety issues for the contract drivers (and the general public) in the performance of their duties. Mr Scott Buchanan, the operations manager for the Sydney metropolitan area of Holcim, who was called to give evidence in the hearing by Mr Miles, outlined in an affidavit which formed the basis of his evidence:

"....concrete truck drivers are exposed to a number of potential safety and environmental hazards on a daily basis, given the nature of the tasks that they perform. The three primary tasks by concrete carriers: mix, transport and deliver concrete, pose a number of potential health and safety hazards to the drivers and/or third parties, including:

(a) when mixing and loading concrete: (i) entering and leaving a site via a driveway safely to ensure no pedestrians come into contact with the truck and (ii) drivers may slip or fall when entering/exiting their truck or when walking on slippery/uneven surfaces in or near the load bay;

(b) when transporting concrete negotiating traffic on busy public roads may pose a risk of accident;

(c) when delivering/discharging concrete: (i) pedestrians, site workers, site obstacles and other vehicles and machinery on a work site may pose additional safety risks, (ii) soft, uneven ground and road surfaces may pose a risk of accident, (iii) traffic congestion on sites may pose a risk of accident, (iv) the requirement to reverse trucks may pose risk of crush injuries, (v) a driver climbing up or down agitator ladder may fall or slip; and (vi) low hanging power lines may pose risk of damage and/or electrocution.

In order to perform these tasks effectively and safely, based on my knowledge and belief, concrete drivers need to be physically and mentally alert and focused while performing their tasks..."

13 For the drivers of any heavy vehicle on New South Wales public roads, the requirement is an alcohol level of less than 02 [2ng/mL] - not 05 [5ng/mL] for other drivers. Any confirmed indication of cannabis at all is not acceptable for drivers of heavy vehicles on public roads.. A driver of a heavy vehicle who does not meet that standard may lose his licence to drive a heavy vehicle.

14 Mr Darron Brien is the managing director of an organisation providing drug and testing operations [Fit 4 Duty Pty Limited] at various worksites, including those of Holcim. He was called as a witness in the hearing by Mr Miles and outlined in his evidence the procedure he has adopted for testing for drugs by way of urine sampling. Mr Brien described Fit 4 Duty as a leading drug and alcohol testing service provider. It engages a variety of specialists, including forensic toxicologists, scientists and other experts to provide specialist expertise, such as the interpretation of alcohol or drug testing results. It provides on-site drug and alcohol testing services across the country and manages and stores confidential information for clients.

15 Accreditation for on-site collection and screening of samples for the purpose of testing for drugs and alcohol in urine and oral fluid samples is provided through the National Association of Testing Authorities [NATA]. Mr Brien recorded in an affidavit which formed the basis of his evidence:

"....NATA is the authority that provides independent assurance of technical competence through a proven network of best practice industry experts for independent accreditation, as required by both the Australian Standards for urine and oral fluid drug testing. NATA provides assessment, accreditation and training services to laboratories and technical facilities throughout Australia and internationally.

Fit 4 Duty holds the highest possible level of accreditation available in Australia for conducting on-site collection and screening of samples for the purpose of testing for drugs in urine. Fit 4 Duty also holds the highest level of accreditation in Australia for collection, storage, handling and dispatch of oral fluids. It is not yet possible for any organisation to achieve compliance with on-site screening of oral samples for the purpose of testing for drug or alcohol use. This is due to the fact that no on-site screening devices for oral fluid have been independently validated at this stage to operate in compliance and conformance with the requirements of the Australian Standard for oral fluid: AS 4760:2006

Fit 4 Duty recently sought NATA accreditation for the on-site screening of oral fluids. However, although Fit 4 Duty's systems and procedures have satisfied all other NATA's requirements for this component, NATA has advised Fit 4 Duty that the issue of independently validated screening kits is a prerequisite for the granting of accreditation... The reason for this is that the available technologies for on-site screening of oral fluids is not yet available to a standard that meets accreditation requirements for NATA...

NATA have certified Fit 4 Duty's urine testing processes in respect to the testing methods, systems and reporting of results and quality system as compliant with the current Australian Standard for urine testing, which is AS/NZS 4308:2008 (and additionally AS 4633:2004 (ISO 15189:2003) Medical Laboratories - particular requirements for quality and competence. The current Australian Standard for oral fluid testing is AS 4760:2006.

Based upon information that is publicly available on the NATA website (www.nat.asn.au) as at Saturday, 3 June, 2010, no testing facilities in Australia were NATA accredited to conduct on-site initial oral fluid testing under S.3 of the Standard. Further, only four facilities (including Fit 4 Duty) have been accredited for collection, storage, handling and dispatch of oral fluid samples pursuant to S.3 of the Standard. In addition, only three facilities have been accredited to conduct laboratory initial screening tests under S.4 and only five facilities have been accredited to conduct confirmatory testing procedures under S.5 of the Standard....."

16 Ms Dezra Fullarton is the national manager of another organisation (Mediscreen) which also provides workplace drug and alcohol testing services for a range of employers at particular worksites by oral testing (or urine testing). She was called as a witness in the hearing by Mr Metcalfe. Ms Fullarton asserted that, whilst Mediscreen may be involved in urine testing, all but one of client it engages has opted for oral testing in their workplace.

17 In her evidence Ms Fullarton demonstrated a system of oral testing that Mediscreen uses for random drug tests (Oraline). It involves testing of saliva externally, as distinct from saliva swabs in the mouth. The person being tested provides a sample of saliva which is placed in a small dish attached to the apparatus and it is subject to testing from that dish. In that manner, Ms Fullarton believes that the problems that may arise with oral swabs, which I will discuss later in this decision, are avoided. In fact, there appears to be a range of oral testing devices currently in use with what appears to me to be varying degrees of sensitivity to the drugs being tested.

18 Ms Fullarton recorded in an affidavit that prior to her employment with Mediscreen she was aware of a 12 month pilot study of workplace drug and alcohol testing utilising the Mediscreen system for oral testing at the request of a prominent steel distribution company (OneSteel) at two of its worksites in Western Australia. OneSteel is supportive of the testing carried out by Mediscreen. Ms Fullarton indicated in her affidavit that:

"....Mediscreen utilises the ChemCentre, the Western Australian Government forensic laboratory (in accordance with AS 4760.2006) for confirmation of initial in field non-negative results for saliva and the ChemCentre provides consultancy and expert testimony, if required, on behalf of Mediscreen... Mediscreen engages registered nurses through a working alliance with Drake Medox, the medical recruitment arm of Drake International. Drake recruit suitable nurses, conduct security and competency checks before recruits are referred to Mediscreen for detailed training in the system prior to being given a field assignment.

The Mediscreen system of processes, procedures, test devices, consumables and documentation is identical throughout Australia, ensuring a high level of consistency in protocols and procedures with strong technical support. The Mediscreen system is utilised by several high profile national companies...and a number of medium size companies, including aviation companies and an airport management company operating under the Civil Aviation Safety Authority (CASA) legislation. In this respect Mediscreen has a presence at every major airport in the country.

Mediscreen supports both urine and saliva testing and their services are delivered in compliance with the Australian Standards AS 4760.2006 and AS 4308.2008. Initial on-site preliminary results of oral fluid drug testing are confirmed by the ChemCentre and correlation between initial immunoassay results and laboratory GC/MS results is extremely high..."

Mediscreen has not yet applied for NATA accreditation but an application for that accreditation is expected in the near future. Ms Fullarton described oral workplace testing as an "...expanding area..." and that a number of employers are coming online with Mediscreen.

"....I have been directly involved in the development and review of workplace safety policies and procedure documents relating specifically to the management of alcohol and other drugs in the workplace and this has included working with committees and key personnel. I have also had the experience of explaining procedures to employees and training key personnel in the associated processes. In my experience I have found that most employers have the strong belief that the primary aim of a workplace drug and alcohol policy and procedure is to raise their employees' awareness and understanding of risk factors through education and training, provide a significant deterrent through uncertainty and unpredictability of test visits and to encourage life style adjustments through the combined efforts and participation of management and workers..." And she concludes her affidavit:

"...Because oral fluid testing is less invasive and does not require a dedicated collection area (toilet) and there are no gender issues, site visits can be at more irregular intervals. Testing can take place almost anywhere (CASA contractors conduct testing of personnel by taking the subject aside - outside a building, within an office or work area close to restricted airside operating areas), including roadside, at a client's work site or in a portable site office. Providing confidentiality and privacy and collection protocols are followed, this flexibility creates a greater level of uncertainty and unpredictability, resulting in a stronger deterrent factor. Mediscreen has noted a marked reduction in the incidence of non-negative results for drug abuse at worksites since the inception of testing..."

20 Mr Richard Olsen, a TWU organiser, was called to give evidence in the hearing by Mr Metcalfe. He is aware of certain transport operatives - Tolls Transport Pty Limited, Linfox Logistics Pty Limited, Ceva Logistics Pty Limited and Hy-Tec Industries Pty Limited - who have opted for saliva testing in their negotiations with the TWU because, among other things, it was less intrusive and did not raise privacy concerns. He indicated in an affidavit he supplied as the basis of his evidence that:

"...the process for saliva testing is not as cumbersome as it is for urine (testing). A contributing factor for Ceva and Tolls in choosing saliva testing was the practicality of testing surrounding gender issues and the impact on efficiency where there are few toilets on site and as many as 30 to 50 employees or contract carriers. I am aware that Hy-Tec has a policy to test first using saliva samples and then urine samples. I recall attending a meeting at Hy-Tec where the alcohol and drug policy was explained. The use of saliva testing was again seen to be the practical option for all involved..."

21 However, Mr Olson was also aware that other transport operatives, eg Boral Transport Limited and Hanson Construction Materials Pty Limited, have chosen urine testing for the random drug testing of their drivers. Although random urine testing has apparently been introduced in those transport enterprises without objection from the TWU or its members employed there, Mr Metcalfe understands that the agreement reached in those enterprises was on the basis that the issue could be revisited and replaced by oral testing procedures as they became more readily available. He submitted that I should not regard what had occurred in those other transport enterprises with the introduction of random urine testing of employees and contractors as establishing any precedent for me in this hearing - and I do not do so. All that I may deal with in this hearing concerns only Holcim and its contract drivers, although I recognise, as Mr Metcalfe suggested in this hearing, that what I conclude in this decision may inevitably have some influence for other transport enterprises. The TWU view remains to support random oral testing over urine testing.

22 I am also aware of the strict drug and alcohol regime imposed for public transport workers - bus and ferry operators - mandated by a regulation made under the 1990 Passenger Transport Act - the 2010 Passenger Transport (Drug and Alcohol Testing Regulation - which prescribes random or targeted urine or blood testing. In particular, Reg.4.1 provides as follows:

"A test supervisor may require any transport safety employee who the test supervisor has reasonable cause to believe is on duty for the purpose of carrying out transport safety work, or who the test supervisor has reasonable cause to believe is about to carry out transport safety work, to do either or both of the following:

(a) undergo a breath test in accordance with the directions of the test supervisor,

(b) provide a sample of the employee's urine for the purpose of testing for the presence of drugs."

23 A transport safety employee may be required to provide a urine sample whether or not there is any suspicion that the employee has recently taken any drug [Reg.4.3(b)] and the results of the drug testing may be used for the purposes of any disciplinary proceedings against the employee [Reg.4.5(b)].

24 Similarly, and more relevant for the current proceedings, S.19 of the 2008 Rail Safety Act requires a rail transport operator to have a drug and alcohol management programme for rail safety officers which are defined in Ss.4 and 7. In terms of S.19(4) of the Rail Safety Act, the independent body set up under the 1988 Transport Administration Act - the Independent Transport Safety and Reliability Regulator or ITSRR:

"....may at any time arrange with a rail transport operator for the random testing of any person on duty for the purpose of carrying out, or who is about to carry out, rail safety work for the presence of alcohol or any other drug to ensure that the operator is complying with this section..."

And in terms of S.7(1)(f), rail safety work extends to include:

"...work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used..."

25 That is, of course, wide enough to cover any contractor, including Holcim contract drivers of concrete agitator vehicles attending State Rail construction projects - and it does cover them. The testing of rail safety workers by way of urine samples is provided by the 2008 Rail Safety (Drug and Alcohol Testing) Regulation. The regime of drug testing for State Rail therefore has particular relevance for the Holcim contract drivers because from time to time they have been called on to work for State Rail projects and when they do they are subject to random urine drug testing. They have accepted that condition in their engagement on such projects (and other projects on which from time to time they may be involved).

26 In his decision in the Refinery Operators Shell Refining (Australia) Pty Limited Award Case Hamberger SDP of the former Australian Industrial Relations Commission indicated a preference for oral drug testing and he expressed the view, based on expert evidence before him, that the implementation of a random urine testing regime would be unjust and unreasonable in the circumstances, ie it was too intrusive when compared to oral testing. He commented in his decision (at p.23):

"....[117] Neither party in this dispute sought to argue that random testing for drugs (or alcohol) was unjust or unreasonable. However, both parties also recognised that random testing is an intrusion on the privacy of the individual which can only be justified on health and safety grounds. The employer has a legitimate right (and indeed an obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health and safety. Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time. Indeed, it would be unjust and unreasonable to do so..."

27 However, the decision of Hamberger SDP was subject to two qualifications: (i) that the laboratories used for oral testing achieve appropriate accreditation according to Australian Standards (something he believed would be achieved in the relatively near future), and (ii) agreement with the relevant trade union - the Construction, Forestry, Mining and Energy Union - and the laboratory concerning what other drugs (eg benzadiazepines) should be the subject of testing and the concentration level for those drugs. He recorded his concerns in that respect in his decision (at p.24), viz:

"....[123] Firstly, the evidence is that, at this stage, no laboratories have as yet been accredited under the relevant Australian Standard. I note that (one of the laboratories referred to in the proceedings) has applied for accreditation and the lack of accredited laboratories is likely to be resolved in the relatively near future. Nevertheless, the company cannot reasonably expect to implement a random drug testing system based on oral fluids until laboratories...have been accredited.

[124] Secondly, there are drugs that the company may wish to test for (such as benzodiazepines) for which AS 4760 does not contain target concentration levels. The company should not be expected to implement an oral fluids based regime until it has the agreement of the union and the laboratory it wishes to use on what other drugs it wishes to test for and what would be an appropriate target concentration level.

[125] Once these two issues are satisfactorily resolved, any random drug testing should be conducted using oral fluids. Until then it would not be unreasonable for the company to implement a urine based testing regime on an interim basis..."

28 It is not altogether clear to me whether or not the oral fluid testing has received the laboratory accreditation to which Hamberger SDP refers as a precondition for oral testing: the evidence before me in this hearing suggests that it may not.

29 As far as random drug testing was concerned, Hamberger SDP had this to say in conclusion in his decision (at pp.24 and 25):

"...[127] Random drug testing involves a trade off between the privacy of the individual and workplace safety. Employees should not have to suffer the intrusion into their privacy involved in random testing unless there is a good safety reason for doing so. Accordingly, there is no basis to conclude that it would be unjust or unreasonable for some employees to be subject to testing and not others, if there is an objective reason for this distinction.

[128] The adoption of a risk assessment process to identify which employees should be subject to random testing is entirely appropriate. Moreover, the methodology contained in the drug and alcohol policy does not seem unreasonable. Clearly there is scope for positions to be reviewed to ensure they are designated appropriately..."

30 The Full Bench of the former Australian Commission in Shell Refining (Australia) Pty Limited v. Construction, Forestry, Mining and Energy Union (2009) AIRCFB 428 reviewed that decision and concluded on the review that the decision was free from error. It upheld the decision, summarising the initial decision of Hamberger SDP (at p.5), viz:

"....[12] The Senior Deputy President made three critical findings. First, he found that a urine test can detect the use of drugs some days, rather than hours, beforehand ('the wide window of detection'). Secondly, he found that oral fluid testing detects recent use and is therefore less likely to detect drug use in an employee's own time. Finally, he concluded that while neither test measures impairment, a positive oral fluid test is far more likely to indicate actual impairment than a positive urine test. In the circumstances, his Honour decided that it would be unjust and unreasonable to permit random urine testing, presumably on the basis that an oral fluid test was likely to detect drug use which was in the employee's own time and which was unlikely to involve impairment. Underlying this conclusion is the view that drug use which is unlikely to directly impact on an employee's fitness for work is not the employer's business.

[13] Despite the finding that random oral fluid testing was to be preferred to random urine testing, the Senior Deputy President's decision did not lead to the immediate introduction of random oral fluid testing... The Senior Deputy President permitted the implementation of random oral fluid testing pending the completion of arrangements to ensure random oral fluid testing would be to a proper standard...

[14] It can be seen that the decision was conditional. While random oral fluid testing was to be introduced, random urine testing was to be permitted until a laboratory had been accredited to carry out oral fluid testing and arrangements had been made which identified the drug to be tested for the target concentration levels to be applied..."

31 The TWU indicated in a statement it prepared prior to the commencement of the hearing that it relies on the decision of the Full Bench of the Australian Commission (and therefore the decision of Hamberger SDP which it supported).

32 Holcim has developed a policy of drug and alcohol testing nationally based on urine testing. Mr Ray Childs, a Holcim contract driver and TWU delegate for the Sydney metropolitan operations of Holcim, and Mr Gary Blackmore, another Holcim contract driver and TWU delegate for the country operations of Holcim, were called to give evidence in the hearing by Mr Metcalfe. They were concerned that the policy was being introduced with what they believed was inadequate consultation with them and they indicated that they were not prepared to accept the policy as it stood.

33 The Holcim drug and alcohol policy which has been developed is that an employee or contract driver who has a non-negative test result is stood down until they are re-tested and found to have a negative result. In the event of the first non-negative result, counselling services are offered to the employee or contract driver through the Holcim employee assistance programme [EAP], although there is no compulsion on the individual driver in that respect. Employees remain on pay whilst they are stood down or alternatively, are assigned suitable alternate duties instead of being stood down. Those options, of course, are not available to the contract drivers, however, although they would be entitled to take sick leave which is contemplated under the two contract agreements covering them. It is an issue for Mr Childs, Mr Blackmore and the TWU that they may lose financially whilst they wait for urine testing.

34 Mr Bruce Nicholson, the national operations manager for Holcim, who was called to give evidence in the hearing by Mr Miles, recollected that drug and alcohol testing and training was introduced in Queensland in 2005 partly in response to the discovery of drug paraphernalia at a Queensland quarry worksite and the admission by a particular employee that he was engaged in the use of a drug (marijuana). Mr Nicholson became acquainted with Fit 4 Duty and Mr Brien assisted in the roll out of a regime of random drug and alcohol testing. Subsequently, Holcim management made the decision to extend the drug and alcohol regime, including the random urine sampling, nationally.

35 Mr Nicholson recalled an industrial dispute with the TWU in Victoria when the random urine sampling was introduced in the Holcim operations in Victoria. He wrote in an affidavit:

"....The TWU initiated a dispute in Melbourne regarding the testing method used in random alcohol and drug testing - namely, the introduction of random urine testing. The TWU asserted that oral fluid testing ought to be the testing methodology implemented. The company employed approximately 15 drivers in Melbourne. The drivers opposed the introduction of random urine testing and sought the assistance of the TWU to act as their agent to represent them in their opposition to the company's desire to introduce random urine testing in the workplace.

The drivers engaged in a one day work stoppage to protest the introduction of random testing in the workplace on a Friday in or about April, 2008. I spoke with the two driver representatives over the course of the following weekend to attempt to negotiate a resolution of the dispute. I then met with the driver representatives...immediately following the stop work meeting to discuss their concerns and seek to resolve the matter.

I was informed by the two driver representatives over the course of the weekend that the drivers were primarily concerned about two issues. The first issue was how they would be treated by the company if when tested a non-negative test result was revealed. Second, they were concerned about the testing process revealing that some of the drivers were being treated with various heart and other medications that may reveal personal health issues and wanted assurance that the company would not terminate their services as a result. In response to the issues raised, I informed the two driver representatives that the company would provide the drivers with the opportunity to inform the company of any prescription medications that they were taking in addition to any non-prescription medications to minimise the likelihood of a false positive test result. In addition, I assured the drivers that if they were medically cleared to drive by their attending physician, then they would be permitted by the company to drive when taking legal/prescribed medications.

Although the TWU opposed the use of urine testing and pushed for oral fluid testing, the drivers agreed to the use of urine testing and the dispute with respect to the implementation of the alcohol and drug policy was resolved over the course of the week immediately following the stop work..."

36 Mr Nicholson claimed that apart from one incident in the middle of 2008 there have been no issues raised with Holcim over the implementation of the drug and alcohol policy in Victoria since it was introduced. That incident involved a driver who was asked to provide a urine sample but that sample was ultimately rejected by the nurse engaged to test the driver on the basis that the temperature of the sample did not correspond to body temperature, ie it was a substitute sample. The driver was subsequently dismissed for tampering with the urine sample and, although he threatened to pursue a claim of unfair dismissal, he ultimately did not do so.

37 Mr Childs claimed in his evidence that at some time in 2008 he was informed by the local TWU delegate for the Tweed Heads plant that drug testers had arrived there and had commenced random urine testing on contract drivers. Mr Childs' subsequent inquiries established that the testing was being conducted through the Holcim management in Queensland. Mr Childs informed the Tweed Heads management of Holcim to cease the testing and that occurred.

38 As far as the Northern Rivers region was concerned, Mr Paul Noakes, the area manager for the region, who was called to give evidence in the hearing by Mr Miles, commenced the introduction of the Holcim drug and alcohol testing, including random urine sampling of the contract drivers, in late 2007 in consultation with Mr Brien. He and Mr Brien addressed a meeting of all employees and contract drivers at that time, who were given three months notice that random blanket screening would be conducted at worksites in the region. Ultimately, that random testing commencing in late 2008 and Holcim had proposed that it conduct random drug and alcohol testing by way of urine samples every six to eight months from that time.

39 Mr Noakes indicated in his evidence that since on site urine testing commenced in the Northern Rivers region there have been from 10 to 12 non-negative on-site test results forwarded to the laboratories for confirmation of the test results. He has found that in some circumstances he has had to invoke Holcim's disciplinary procedure after receiving multiple positive confirmations from laboratory testing. He has found it necessary to terminate the employment of one permanent employee as a result of the introduction of the drug and alcohol policy. He recorded the circumstances surrounding that matter in the affidavit which formed the basis of his evidence, viz:

"....An employee under my supervision was stood down in or about October, 2009, after his first non-negative test result during a random testing process. He was informed and he accepted that in the event of a further positive test, then this would result in further disciplinary action, potentially termination of employment. In or about March, 2010 the employee was randomly tested as part of a subsequent random testing process. The employee refused to submit to the test during the second random testing process, stating that he knew he would fail the test because he had smoked marijuana the prior night. I subsequently determined to terminate the employment of this employee as a result of this incident..."

40 It has been Mr Noakes' experience that when such situations arise, employees (ordinarily casuals) generally chose to resign when they receive a second non-negative laboratory confirmation test result during random testing. He recalls approximately from 6 to 8 employees who have tendered their resignation in those circumstances.

41 The affidavit which Mr Noakes provided as the basis of his evidence was lodged with the Registry on Wednesday, 23 June, 2010 and the TWU became aware of the arrangements in the Northern Rivers region from that time. When Mr Childs and Mr Blackmore became aware from Mr Noakes' assertions in his affidavit, they travelled to Ballina to speak to the contract drivers for the region. They both assert in the affidavits they provided as the basis of their evidence that they actually travelled to Ballina on Wednesday, 16 June, 2010 but they concede in their oral evidence that date cannot be correct as it preceded the date Mr Noakes' affidavit was lodged with the Registry and the TWU became aware of the situation in the Northern Rivers region. At the meeting Mr Childs and Mr Blackmore explained the position that had been adopted by the TWU in these proceedings before me, ie opposition to urine testing. Mr Blackmore claimed that there were from 5 to 6 contract drivers attending the meeting.

42 The upshot was that the contract drivers in the region indicated their preference for saliva testing in place of urine samples. Mr Childs explained in his affidavit that at the meeting they had with the contract drivers in Ballina they explained to Mr Blackmore and him what had occurred on the previous day, viz:

"....The owner drivers explained that a van pulled up at the Byron Bay plant with testers and the drug testing process began for the employees. The owner drivers explained...that as all of the employees went ahead, they too submitted themselves to be tested. The owner drivers explained...that Holcim management had not put pressure on them to take the test but then Holcim management did not say that they did not have to take the test due to the current industrial dispute before the Commission.

Mr Blackmore and myself explained to the owner drivers the industrial dispute regarding the drug and alcohol policy that is currently before the Commission. We explained the difference between urine and saliva testing. The owner drivers agreed with our point of view that saliva testing is more preferable due to the privacy concerns of urine testing and the time delays that occur when having to take the test..."

Mr Blackmore gave a similar version of the meeting with the contract drivers in the Northern Rivers region.

43 Finally, as I indicated earlier in this decision, when the Holcim contract drivers perform work in delivering concrete to State Rail construction sites they automatically fall under the regime flowing from the Rail Safety Act and the Rail Safety (Drug and Alcohol Testing) Regulation made under it. Consequently, they may be subjected to random urine testing for such work. This was brought to the attention of Mr Childs and the Holcim contract drivers agreed to being so bound. Mr Childs also described other occasions where the contract drivers have been subject to urine testing when they delivered to other clients - a water treatment plant and a hospital site. The decision taken by the contract drivers was no doubt as Mr Metcalfe described it in his submissions - a commercial decision on the part of the contract drivers, ie one off arrangements only, not to be regarded as a precedent, simply to ensure that there were no unnecessary complications in providing the work at such sites.

44 Holcim has sought variation to two contract determinations - the Readymix Holdings Pty Limited Sydney Contract Carriers Contract Determination (covering Holcim contract driver in the Sydney metropolitan area) and the Readymix Holdings Pty Limited Country Contract Carriers Contract Determination (covering Holcim contract drivers for country regions in New South Wales) - to incorporate its drug and alcohol testing regime and, in particular, to accommodate random drug testing by way of urine sampling. Mr Miles argues that it is a matter for the discretion of Holcim management to arrange such testing, consistent with accepted scientific standards. He asserts that it is not unfair, harsh or unconscionable for Holcim to implement its proposed drug and alcohol policy; including the use of random urine testing in the workplace and that the two contract determinations should be varied accordingly.

45 In written submissions Mr Miles emphasises the obligations imposed by the 2000 Occupational Health and Safety Act in that respect, which is placed on Holcim, its directors and managers, viz:

"....Holcim has a duty, pursuant to S.8 of the OH and S Act to ensure the health, safety and welfare at work of all of Holcim's (employees). In addition, Holcim must ensure that people (other than the employees) are not exposed to risk to their health or safety arising from the conduct of Holcim's undertaking while they are at Holcim's place of work.

In these proceedings there appears to be no issue that there is a necessity for drug and alcohol testing of contract carriers to take place as there is a reasonable foreseeability that a driver affected by drugs or alcohol may injure themselves, employees of the company or members of the public whilst operating a heavy piece of machinery and further, that random drug and alcohol testing would be an appropriate measure to minimise this risk.

In that respect, there are numerous cases of the Industrial Court of New South Wales where defendants (including directors) have been found guilty of breaches of the OH and S Act in circumstances where drivers have had accidents which caused their death or that of a member of the public... Even though the contract carriers are not employees of the company, there is still an obligation upon the company to provide a safe system of work to non-employees and in this case to the contract carriers..."

46 The TWU does not object to random testing for drugs and alcohol. Indeed, it has a well-known opposition to individual employees and contractors involved in the transport industry driving under the influence of drugs and alcohol and has been active to condemn that practice and put into effect measures to eliminate the risk of the impairment of drivers by drugs or alcohol. For instance, the TWU took the initiative in that respect in pursuing a claim for a universal drug and alcohol policy in the transport industry in New South Wales (if not necessarily going so far as random testing), culminating in the decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President, Sams DP and Tabbaa C) in Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No.2) (2006) 158 IR 17.The Full Bench commented (at pp.74 and 75):

"....[232] We do not consider it could seriously be suggested that the requirement for all transport operators to have a drug and alcohol policy, which includes drug and alcohol testing, is not a highly desirable tool to combat the widespread use of drugs by employees in the road transport industry. In many ways, it is most surprising that the initiative in this regard has been from the union. It is trite to observe that there has been a long held resistance from unions on behalf of their members for drug and alcohol testing sought to be introduced by employers.

[233] We would suggest that rather than criticising the proposal, the union's acknowledgement of the need to address this issue should be welcomed. Such criticism, we think, is largely disingenuous.

[234] We do not consider that the employers' criticism of the union's proposal based on a failure to provide for random testing and an insistence on a preferred method of testing is sustainable from a strict reading of the draft proposal. We accept...that the draft proposal is not meant to be prescriptive and does not prevent random testing. We consider, however, that the policy should specifically allow for random testing..."

47 In the written statement provided to me by the TWU as a response to the Holcim claims it commented:

"....The union condemns in the strongest terms the use of illegal drugs and the use of legal drugs during work hours or in a manner that affects the performance of the workers. The safety of workers and the users of public roads is paramount..." But it adds in that written statement:

"...Despite this, the union considers that any testing regime should be well adapted to its proper purpose and only as intrusive as necessary. A poorly designed, excessively intrusive and poorly focused system will not assist the fundamental objective of safety. A testing regime that excessively penalises workers or appears disconnected to the objective of safety will tend to be avoided and will lack the confidence of all concerned. Further, any drug and alcohol policy that has the potential to lead to the dismissal of an employee must be clear, consistent and transparent. The policy is currently unclear, inconsistent and not transparent and therefore it would be unfair to implement it..."

And in the written statement the TWU further comments that:

"...the union repeats its condemnation of illegal drug use in any circumstances but believes that a zero tolerance policy is not the best approach to achieving the objective of eliminating the risk that contract carriers perform work whilst impaired by the effects of drugs and alcohol..."

48 Nevertheless, the TWU is opposed to the drug and alcohol policy introduced by Holcim, and in particular, the fact that it relies on urine sampling. As I understand the TWU position in this hearing, its chief concerns fall essentially under five headings, viz:

(i) it believes that urine sampling is unnecessarily intrusive, invading the privacy of the individual, and it supports instead oral testing which is, in its opinion, more convenient to the contract drivers (and no doubt for the management of the transport enterprises);

(ii) it is concerned that urine sampling would be a slower process than oral testing and, since the contract drivers are paid according to the loads that they actually take, it would mean that any unnecessary time they spend waiting for urine testing would prevent them from obtaining a load of concrete and therefore adversely affect the level of the remuneration they receive: this is not an issue for employee drivers when they are tested because they would be paid during the testing but for the contract drivers, time would mean money to them;

(iii) it believes that the drug and alcohol policy appears to be part of a regime of discipline against the individual driver, rather than looked at as an occupational health and safety issue;

(iv) it is concerned over the outcome of a non-negative testing of a contract driver and Holcim's apparent acceptance that such a finding would automatically support the contention that he was unfit for work: it apparently accepts the proposition which has emerged from the evidence that urine sampling provides a better history of drug taking but that history may not necessarily result in the impairment of the driver at the relevant time of the testing and his driving of the vehicle: it is the actual impairment of the individual driver which primarily raises the occupational health and safety concerns, rather than whether or not he has taken that drug at other times for recreational purposes: and

(v) it is also concerned at the incidents of false positive results from urine testing.

49 Mr Miles asserted during the course of the hearing that the contract determinations covering the Holcim contract drivers provides sick leave arrangements and a contract driver showing a non-negative test result would initially be entitled to rely on those sick leave provisions. He refutes Mr Metcalfe's claim of excessive waiting time for the drug testing. He believes that the process would not be time consuming and that at each worksite there would be insufficient individuals to be tested on each occasion to lead to any real delay. The contract drivers already work to a rotating roster arrangement for the allocation of work to ensure fairness and the random testing could be carried out to accommodate individuals according to that roster.

50 Mr Metcalfe believes that there are a number of points of departure between the proposal advanced by Holcim for its drug and alcohol testing regime and the type of policy contemplated by the Full Bench in the Mutual Responsibility for Road Safety Case and codified in the Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination, which flowed from it. In particular, no mention is made in the Holcim policy of the desirability of eliminating professional drug taking amongst contract carriers: the raison d'etre for the industry determination was the elimination of professional drug taking by transport workers but that is ignored in the Holcim application with what Mr Metcalfe described as a "two strikes and you're out" policy. Mr Metcalfe also asserted that no provision is made for the involvement of the TWU in training the drivers and he sees that as essential for the development of a proper policy to eliminate drugs in the workplace.

51 It is with that background information, I turn now to examine the evidence given in these proceedings concerning the efficacy of urine samples and oral testing, including saliva swabs, to identify the presence of drugs. That has been the main area of contention between Holcim and the TWU. I have been assisted in this hearing by comprehensive evidence from two experts in the field of toxicology and pharmacology. Dr John Lewis, a consultant toxicologist, was called to give evidence in the hearing by Mr Miles. Dr Judith Perl, a consultant pharmacologist, was called to give evidence by Mr Metcalfe.

52 Dr Lewis is a toxicologist with over 30 years experience in testing for drugs of abuse and he asserts that he is recognised as one of Australia's leading experts in this field, who has published a number of articles on the analysis and interpretation of drugs of abuse. He is chairman of Standards Australia CH-036 which is responsible for the development of Australian Standard AS/NZS 4308. He indicated in his evidence that he had spent 10 years in drug testing in canines and 28 years involved in drug testing in humans - in drug and alcohol treatment centres, prisons and workplace drug testing.

53 Dr Perl holds degrees of Bachelor of Science (majoring in pharmacology and physiology) and a doctor of philosophy (in pharmacology) from the University of Sydney. She is a member of the International Committee on Alcohol, Drugs and Traffic Safety and a Fellow of the Australasian College of Biomedical Scientists. Since 1979 her principal area of research has been the effects of alcohol and drugs on psychomotor performance skills (primarily related to driving ability), ie traffic violations, traffic crashes, etc. She was a technical officer at the 2000 Olympics and has been the chairperson of the Appeal Tribunal for Drugs in Cycling for the Australian Cycling Federation.

54 It is essentially the evidence of both Dr Lewis and Dr Perl on which the scientific basis of the conflicting claims before me is to be evaluated. And it appears to be common ground between them that both urine testing or oral samples, including saliva swabs, have their own inherent defects. There are, in fact, many areas of agreement between Dr Lewis and Dr Perl. However, Dr Lewis, on balance, favours urine testing as the more appropriate measure for the Holcim contract drivers the subject of this dispute, whilst Dr Perl gives more support to oral testing. Whilst, as I indicated earlier in this decision, their evidence was not given concurrently, they had remained present in the hearing whilst they gave their respective evidence and were able to advance issues for cross-examination through Mr Miles and Mr Metcalfe to assist in crystallising and confining the main areas of dispute between them.

55 Dr Lewis identified two major drugs of abuse of particular concern in the workplace - methamphetamine and cannabis. In these proceedings, as Mr Miles indicates in his written submissions, there has been a particular emphasis in the evidence on cannabis and the amphetamine class of drugs because those drugs are the two major drugs of abuse of concern in the workplace and, indeed, by police forces. There was also some evidence in the proceedings concerning benzodiazapines, chiefly a supplementary report by Dr Perl which the TWU did not supply until Tuesday, 30 November, 2010 and which I admitted into evidence at the commencement of the proceedings on Thursday, 2 December, 2010 over the initial objections of Holcim.

56 As Dr Perl records in her supplementary report, benzodiazapines are generally legitimately prescribed drugs, commonly used to treat various illnesses, including anxiety, sleep disturbances, temporary treatment of stress and depression, muscular tension resulting in pain and epilepsy. According to Dr Perl's report, the detection of benzodiazapine in both oral and urine merely indicates past usage of the drug. Both urine and oral fluid screening tests only detect the class of the drug and confirmation by gas chromatograph/mass spectrometry or similar method would be required to identify the particular benziodiazapine present. Dr Perl writes that:

"....in my 25 years of experience, benzodiazapine abuse is relatively uncommon in the majority of users who are prescribed the drug. However, there is certainly significant abuse of this class of drug by heroin addicts and other recreational uses of illicit drugs. A person using a benzodiazapine as prescribed, on a daily or regular basis, would develop significant tolerance to any of the sedating effects of the drug and therefore would generally not be impaired in their cognitive and motor functions. If there was any impairment, I would expect there to be obvious visible signs of 'intoxication', drowsiness, swaying or unsteadiness, slower actions and speech, possibly slurred speech. These are signs which should be obvious to any person properly trained in conducting any form of body fluid testing..."

57 Methamphetamine is a psychoactive stimulant of the phenethylamine and amphetamine class of drugs with a high potential for abuse and addiction by activating the psychological reward system via increasing levels of dopamine, norepinephine and serotonin in the brain. The particular problem in the transport industry, particularly long distance transport, is not its use for recreational reasons but to meet inappropriate deadlines and avoid the onset of fatigue whist driving.

58 In the Mutual Responsibility for Road Safety Case the Full Bench commented on the findings of surveys (at p.29), viz:

"...[22] Two national surveys in 1991 and 1998 recorded that the use of 'stay awake' or stimulant drugs was cited by drivers as one of the two most helpful strategies for managing fatigue... Whilst the precise level of drug use in the long-distance trucking industry was unknown, the evidence led to a firm conclusion that it was widespread... Prolonged sleep deprivation/fatigue and drug use may not only increase the risk of truck crashes but also will have long-term health effects on the drivers affected.

[23] Of the 13 driver witnesses, a number openly admitted using stimulants to help them work: others gave evidence of having conversations with other drivers about the use of illicit drugs while working: three drivers spoke of management knowing or encouraging the use of drugs during the course of performing their work..."

59 According to Mr Metcalfe, that should not be such a major issue for the Holcim contract drivers whose work, of course, does not involve long distance travel where the use of the drug would have the most impact. But, in my opinion, it still would have some relevance in this hearing and remains an issue which I expect would be addressed by the Holcim drug and alcohol policy.

60 In his report Dr Lewis highlighted the fact that while a person was in the withdrawal phase of the use of methamphetamine there was still, in his view, an impairing effect from the drug, viz:

"....Low blood concentrations of methamphetamine did not exclude the possibility of impairment. There is a relationship between blood levels and corresponding saliva levels of methamphetamine; this is known as the plasma:saliva ratio. For methamphetamine, this ratio is highly variable, meaning that in some individuals the saliva concentration could be very low if the plasma (blood) levels are also low. Thus...there is evidence of impairment once blood levels drop to very low amounts. It follows that saliva levels could also be very low and possibly undetectable by on-site devices. By contrast, there is a greater possibility of identifying this recent use by way of urine testing..."

61 Dr Perl had already given evidence in other proceedings before this Commission concerning the effects of methamphetamine on drivers. For instance, in the decision of Walton J - Vice President of the Commission in WorkCover Authority of New South Wales v. Hitchcock (2004) 135 IR 377 her evidence is described by his Honour (at p.429) in the following terms:

"....[181] Dr Perl agreed that methamphetamine was psychologically addictive and that a long-term user may believe that they had to take the drug in order to stay awake when in fact this may not be the case.

[182] According to Dr Perl, during the acute stimulant phase following use of amphetamines there is a marked increase in wakefulness, alertness and euphoria: perceptions and judgements are altered and there is commonly an increase in risk-taking behaviours. High doses lead to hyper-reflexia, restlessness, talkativeness, sleep disturbance and insomnia, headache, hypertension and palpitations. The user may experience hallucinations and paranoid thoughts. When the over-stimulation of the brain wears off there is a reactive depressive stage referred to as 'crashing', the most common symptoms of which include extreme fatigue, sleepiness and depression.

[183] Methamphetamine can impair driving abilities in two different ways: by impairing judgement and increasing risk-taking behaviour, or due to the fatigue and hypersomnolence as a result of withdrawal. Often this second stage impairs driving ability to a greater extent than the initial stimulation. The drug-induced fatigue or depression is exacerbated by the natural fatigue the driver was masking in the first place. Like all stimulants, it produces physiological effects such as palpitations and hypertension, thereby increasing the risk of a cardiovascular accident (such as a cardiac arrest or stoke).

[184] Dr Perl agreed under cross-examination that even low doses of methamphetamine in some individuals could produce a stroke or even some form of a heart attack, and agreed that given the presence of methamphetamine in (the driver's) liver, a cardiovascular accident may have been a factor in the crash..."

62 Dr Perl gave similar evidence in these proceedings, highlighting the risks associated with the use of methamphetamine by transport workers and going further to explain her views on urine testing and oral testing for that drug, viz:

Mr Miles: ...It's been reported...(particularly from Dr Perl's evidence in WorkCover Authority of New South Wales v. Hitchcock ) that truck drivers use stimulant drugs to temporarily delay the onset of fatigue and sleepiness and they use them in response to occupational pressures to meet unreasonable driving hours, rather than for recreational reasons, such as to alter their mood.

Mr Miles: And that methamphetamine can impair driving abilities in two different ways?

Mr Miles: It can impair judgment and increase risk taking behaviour during the acute phase?

Mr Miles: And it can lead to fatigue and excessive sleepiness as a result of withdrawal?

Mr Miles: And I think your evidence was that the withdrawal of it can, in fact, be a greater level of impairment than the initial phase?

Mr Miles: And you'd agree, wouldn't you that the use of methamphetamine by a truck driver should be a concern to a transport company?

Mr Miles: And the concern is not simply limited to whether they are impaired right now, is it?

Dr Perl: No. Well, the concern is that there is a potential, but whether that person is a risk would depend on when they used it, how often they used it, what particular matrix you're using to detect it. So there are a lot of variables in that.

Mr Miles: But the use may be professional (ie occupational) use?

Mr Miles: ....That any level of detection for a transport company may give you an indication that a person is using (the drug) for occupational reasons?

Mr Miles: It's certainly something that the company should be aware of?

Dr Perl: I would think that, yes. A company should be aware if somebody is a regular user, yes.

Mr Miles: Or even an irregular user, shouldn't they?

Dr Perl: ...Look, there are truck drivers who use (the drug) recreationally in their own time for their recreational pleasure but generally...truck drivers tend to use (it) for professional occupational reasons.

Mr Miles: And so if your goal is to eliminate the use of methamphetamine for occupational reasons, that a longer window of detection would be preferable?

Dr Perl: If it's as a deterrent, yes, and to change behaviour, yes.

Mr Miles: And even to identify that there's a problem?

Mr Miles: Yes, that there's a potential problem. And would it be accurate to say that a positive oral fluid test is consistent with the first stage of impairment that you spoke about?

Mr Miles: And what about the second stage of impairment?

Dr Perl: You're not likely to find methamphetamine in the oral fluid when the blood levels have fallen to very low levels, at which stage there may be still that rebound impairment or that crashing phase.

Mr Miles: So that's likely to be a day or two after the use?

Mr Miles: So it's still likely to be detectable in urine in that stage?

Dr Perl: Yes, it is more likely to be detectable in urine.

Mr Miles: So that if a person gives a negative test to oral fluid for amphetamine or methamphetamine, let's be precise, you couldn't be confident that the person is not impaired?... I think your evidence is that a positive test for oral fluid, you can be confident the person is impaired?

Mr Miles: What I'm putting to you is that a negative test for oral fluid, the person might still be impaired?

Dr Perl: They may be impaired for many reasons, including fatigue.

Mr Miles: Yes, but they may be impaired by the use of methamphetamine?

Mr Miles: And you can be confident, can you, that a person who returns a negative urine test, they're unlikely to be impaired by methamphetamine?

Dr Perl: No. Not if the levels have fallen to below detection limits and the person is in the withdrawal phase.

Mr Miles: Does the withdrawal phase last for longer than two or three days?

Dr Perl: I suppose it depends on...how heavily the drug was used prior, but yes its possible that you could have a withdrawal state that lasts several days and the urine levels may fall below the detection limit and you may still have some residual impairment.

Mr Miles: But it's less likely than with oral fluid, isn't it?

Dr Perl: Well, it's less likely, but it's still there. The risk's still there.

63 Cannabis (marijuana) remains the prevalent illicit drug used throughout the community and much of the scientific evaluation of the testing regimes before me in this hearing, and much of my decision, concerns it specifically. Tetrahydrocannabinol [or THC] is the major active cannabinoid found in cannabis and it is responsible for the majority of the intoxicating effects of smoked cannabis. There are, in fact, numerous cannabinoids and it is only the inactive metabolite delta-9-tetrahydrocannabinolic acid in cannabis [or delta-9-THC acid or simply - and confusingly - also referred to as THC] which is measured in urine. That is not the primary active element of the drug responsible for the impairment of cognitive and motor functions, however - although the inactive THC would not, of course, be present in urine unless the individual being tested had some contact with cannabis.

64 Dr Perl nevertheless sees that issue as a fundamental flaw in the use of urine samples to confirm actual impairment from consumption of cannabis. She wrote in her report:

"....It is asserted by Holcim that they have accountability under relevant legislation and common law 'duty of care' to ensure a safe workplace and safe systems of work for persons accessing or working on their sites. The policy is based on 'fitness for duty' in relation to alcohol and other drugs. Holcim proposes urine testing for its workforce of contract carriers engaged in carting ready mix concrete. If the policy is designed to eliminate the risk of 'performing work whilst impaired by the effects of drugs or alcohol' then urine testing is an inappropriate sample..."

It follows, as Dr Perl indicated, that the presence of THC, ie delta-9-THC, in urine is not, of itself, sufficient grounds to establish conclusively impairment of the individual person at the time of his being tested.

65 Dr Perl indicates in her written report that Australian Standard AS/NZS 4308 relating to urine sampling confirms that the standard "...has no relevance to the issue of impairment...". Dr Perl comments in that written report that:

"....the presence of a drug in urine merely indicates some past usage of the substance and in some rare instances may even indicate mere exposure to a substance, such as cannabis. For example, a positive result in urine for cannabinoids can occur if the subject was exposed to intense cannabis smoke, for example in an enclosed space with a heavy cannabis user...although, generally following a single exposure, the amount of smoke exposure will not result in a concentration high enough to be above the screening cut-off limits proposed in the Australian Standard AS/NZS 4308. There is a higher risk of a positive result if the exposure is regular and intense. Thus, to avoid a positive urine result, the worker not only needs to avoid smoking or ingesting cannabis, but must also avoid being in the close vicinity of a heavy user of cannabis."

66 Dr Lewis points out that a single dose of a drug may be detected in urine for from 4 to 5 hours after ingestion and up to several days later. Most drugs are eliminated within 2 to 4 days after use but cannabis (marijuana) is an exception. Dr Lewis claimed that a naive user, ie one who is a very infrequent cannabis user, will eliminate the drug within hours following a single smoke but frequent users take a few days and chronic users may take up to three weeks to totally eliminate cannabis metabolite - the inactive and harmless component of the drug.

67 Nevertheless, Dr Lewis has claimed in a written report that urine testing has been shown to be highly effective in identifying recent drug use and testing methods which comply with Australian Standard AS/NZS 4308 (as Fit 4 Duty urine testing clearly does) are in his opinion accurate. In her report Dr Perl takes issue with that claim concerning recent drug use by Dr Lewis, viz:

"....The issue of 'recent drug use' is highly questionable in the case of cannabis. From my personal experience, many long-term, very heavy users of cannabis who cease using cannabis have detectable THC in blood for only a short period of time (generally, no more than days,) but the inactive delta-9-THC acid can be detectable in urine for several months. Several months is not 'recent'..."

68 The following relevant comments were made by Ms Fullarton in her evidence on her oral testing regime:

Commissioner: I gather that oral testing that you arrange doesn't actually pick up a history of drug use where urine testing does?

Commissioner: Is that an area of possible concern with some drugs in your expectation?

Ms Fullarton: With the companies that I do testing for, I've been part of their inductions as well. Their concern when a person shows up for work is that they are fit for work when they show up for work.

Commissioner: ...Bearing in mind these are random tests, and I don't mean to put it on the basis of a lottery, but if a person is using THC, marijuana, smoking marijuana regularly, but just not on that particular day, is that an area that could be a cause of concern?

Ms Fullarton: It doesn't seem to be of concern to the companies that I am dealing with and that's through aviation, transport, manufacturing. Their primary concern is that a person is showing up fit for work and most of the programmes are called fit for work.

69 Dr Lewis also spoke in his evidence of what he described as the "hangover effect" with cannabis, ie after the initial period of impairment when the drug would be likely to be detected by oral testing, the individual may nevertheless still be adversely affected and yet give a negative result to oral testing. Dr Lewis spoke of this question of impairment with cannabis consumption in his evidence, viz:

Commissioner: The impairment of the individual, that would vary, would it?

Dr Lewis: Well, my understanding of impairment is we have what we call acute impairment, which is the immediate euphoric effects which are agreed to be up to about six hours. So after someone has smoked a cigarette, you are impaired for up to about five or six hours. There is a second period of impairment which is less understood where you have what we call a hangover effect. In other words, the after effect of a substance. And it's probably more so if a person is using it on a more frequent basis. And the simple analogy is someone who has a caffeine addiction or a nicotine addiction. If they suddenly stop using, they are going to be impaired because the blood levels drop and they are going to feel very uncomfortable. So I think it's very important that when we understand what impairment is -

Commissioner: You're talking about an habitual user in that?

Dr Lewis: Habitual users, that is correct. And that's all part of the impairment...

Mr Miles: The extent of any withdrawal or hangover effect would vary tremendously, based on the different drugs. Is that -?

70 Furthermore, Dr Lewis speculates in his report that the identification of "...irregular or habitual users of cannabis..." still highlights potential risks to safety in the workplace and he spoke in his evidence of a possible loss of cognitive functioning and motor skills for habitual users of cannabis. He commented in his written report:

"....For cannabis impairment, there is strong clinical evidence of impairment following regular and long-term (chronic use)."

And he refers to conclusions reached in various academic studies on the consequences of cannabis use and the impairment effects in cannabis users, including both cognitive and psychomotor impairment and that the heavy use of marijuana was associated with persistent decrements in neorocognitive performance even after 28 days of abstinence. He relies on comments made that "...recent studies in Australia on fatally-injured drivers suggest that drivers with THC concentrations over 2ng/mL are more likely to be responsible for the crash..." and that "...drivers with significant THC in blood (probably over 2ng/mL) tend to present as impaired and culpable..." [Drummer O, The Forensic Pharmacology of Drugs of Abuse (at p.207)].

"....There is a direct relevance of the coroner's findings and reviews of blood THC levels detected in drivers involved in vehicle accidents to Holcim's assertion that oral fluid testing is an inappropriate means of identifying risk of accident in its contract with drivers. In a study involving controlled experiments in smoking cannabis [Huestis M and Cone E, Relationship of delta-9-Tetrahydrocannabinol Concentrations in Oral Fluid and Plasma after Controlled Administration of Smoked Cannabis. J Anal Toxicol 28 394-399 2004] reported on the relationship between plasma and oral fluid concentrations over time. They found a parallel in the decay of plasma and oral fluid levels of THC in a subject smoking a single cannabis cigarette. After approximately two hours, both plasma and oral fluid levels dropped to less than about 5ng/mL. One would expect these levels to drop lower in the ensuing 2 to 4 hours, a time frame within the accepted period of acute impairment.

The issue for Holcim to consider is that blood and therefore oral fluid levels of THC fall to very low levels within the period of acute impairment and these levels have been implicated in motor vehicle fatalities. There is no existing on-site device for oral fluid that is capable of identifying THC at these levels. I am of the opinion that there is a far greater likelihood of an on-site oral fluid test producing a negative result for cannabis than there is of identifying a positive one and thus not identifying a risk of impairment..."

72 In his report Dr Lewis spoke of a study and a theory to the effect that:

"....There is...evidence for an 'amotivational syndrome' in chronic heavy cannabis users. These symptoms include apathy and the inability to carry out complex long-term plans or concentrate for long periods of time. It is apparent that there are a number of impairing effects of cannabis long after the initial euphoric effects have subsided. I am of the opinion that studies into blood levels of both methamphetamine and THC (active ingredient in cannabis) highlight a naiety in those who assume that impairment equates only to the immediate euphoric effects of a drug..."

However, Dr Perl asserted in her evidence that the views of that study on which Dr Lewis based his comments are still controversial.

At a glance

Court

Decision date

Before

Source

Judgment (322 paragraphs)

Cases Cited (7)

Cited By (1)