How the Shell Refinery and Caltex rulings affects your business

Prior to the Australian Industrial Relations Commission’s (AIRC) Shell Refinery (2008) and Caltex (2009) rulings, urine testing was considered the standard method for workplace drug detection. However, the preferred testing method in Australian workplaces is now fast becoming the saliva test. So, whilst the recent AIRC decisions edify the use of workplace drug and alcohol detection programs, it noted that the saliva test was the preferred and recommended method of detection for most drug testing programs. Moreover, it granted that an employer has a legitimate right to reduce/ eliminate risks within the workplace and fully supported the right of an employer to address its OHS risks by conducting regular drug and alcohol testing as deemed ethical and necessary.

In this way, if you own or are a manager/ executive of a business, (especially a business within a high risk industry such as aviation, mining, construction, maritime or transport), it’s critical to ensure your full understanding of how the Shell Refinery and Caltex rulings affects you and your legal “duty of care”. Seeking professional legal advice is highly recommended. In the interim, the following key points provide a brief overview of the entailing OHS ramifications:

  • On the 25 of August 2008, (in response to union submissions), the AIRC recommended saliva testing as the preferred drug testing methodology. The AIRC – whilst agreeing with the union that an employer’s consistent use of urine testing was “unjust” and “unreasonable” to employees –- still maintained that the employer could reasonably implement urine testing on an interim basis. In alignment with union arguments then, the AIRC agreed that saliva testing was the preferred methodology to facilitate workplace drug testing once an authorised testing program was established.
  • Motioned by a full bench, Senior Deputy President Hamberger ruling in favour of Caltex Australia Ltd on 19 October 2009, authorised the use of random drug testing for Caltex’s Kurnell Refinery (and all Australian businesses/ organisations), stating: “…both state and federal governments in Australia have taken the view that random testing for drugs and alcohol can be appropriate for workers involved in safety critical work”.
  • All employers are legally obligated to maintain a safe workplace without risks to health.
  • All employers may justifiably consider the implementation of drug and alcohol testing.
  • All workplaces in high risk areas such as manufacturing, mining or construction are especially recommended to consider the implementation of drug and alcohol testing.
  • There are currently two Australian Standards for workplace drug and alcohol testing: the Australian Urine Drug Testing Standard AS4308:2008 and the Australian Saliva Drug Testing Standard AS4760:2006.

Essentially, how the Shell Refinery and Caltex judgments affect you (and your business) is by the fact they both strongly reinforce current OHS legislation which stipulates that all businesses and organisations in Australia are required by law to provide a safe workplace for their staff, visitors and community at large. Therefore, if you believe there’s a “culture of risk” at your workplace, a drug and alcohol testing program could be part of an effective risk management system to help prevent workplace accidents, especially in occupations where safety is critical.

For more information on these cases, see the Shell Refining (Australia) Pty Ltd case here or Caltex Australia Ltd case here For additional testing guidelines visit the Standards Australia  website www.standards.org.au or the AIRC website www.airc.gov.au. Alternatively, you can talk to our team of experts at CMM Technology on (+618) 9204 2500 for practical advice and quality Standards Australia aligned testing products.

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