Industrial Relations Commission of New South Wales CITATION : Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 PARTIES : Australian Workers Union, New South Wales BHP Steel (AIS) Pty Limited FILE NUMBER: IRC 7045 of 2002 CORAM: Walton J Vice-President; Grayson DP; Connor C CATCHWORDS : Industrial dispute - Declaratory relief proceedings - Arbitral proceedings - Alcohol and other drugs management policy - Employer obligation to maintain safe and healthy workplace - Union opposition to testing procedure and disciplinary sanctions - Counterbalancing of various rights and interests - Safety and health in working environment - Fair and reasonable treatment in employment - Discipline in employment - Rights to privacy - Balancing of issues with various statutory and common law requirements - Joint acceptance of need to regulate drug and alcohol as between industrial parties - Desirability of recommendation at this stage - Competing contentions as to minimum detection level for cannabis - Definition of significant incident as precursor to testing - Mandatory disclosure of prescription medication or health condition likely to impair function - Compulsory Testing - Modifications to existing policy - Recommendation LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2000 BHP Iron Ore Limited v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (1998) 82 IR 162 CASES CITED : Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003) Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 HEARING DATES: 06/13/2003; 06/20/2003; 06/23/2003; 08/14/2003; 09/12/2003 DATE OF JUDGMENT: 12/18/2003 AUSTRALIAN WORKERS UNION Mr Kenzie, QC with Mr P Ginters of counsel LEGAL REPRESENTATIVES: BHP STEEL (AIS) PTY LIMITED Mr Dixon, QC with Mr R Warren of counsel JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Acting-President GRAYSON DP CONNOR C 18 December 2003 Matter No IRC 7045 of 2002 Notification pursuant to section 130 by The Australian Workers' Union, New South Wales Branch of a dispute BHP Steel (AIS) Pty Limited and others re: drug and alcohol policy RECOMMENDATION [2003] NSWIRComm 461 1 In 1997 BHP Steel (AIS) Pty Ltd ("the Company") introduced for the first time a formal drug and alcohol policy known as the Alcohol and Other Drugs Management Procedure ("the Policy"). The Policy had as its stated purpose the improvement of occupational health and safety at the "integrated steel division - Port Kembla" by means of the reduction of the possibility of injury to people on the site and damage to plant and equipment which might arise from people being under the influence of alcohol and/or other drugs. The Policy was developed with the involvement and support of management, unions having members at the steel works and reflected an agreement reached between the industrial parties. 2 On 17 September 2001 the company promulgated a new drug and alcohol policy which although having the same title, significantly changed the earlier procedures by introducing a regime for testing by management by various means for the presence of alcohol and designated drugs. By contrast, the earlier policy involved the determination by employee representatives (known as 'nominated peers') and supervisors of the influence of alcohol and other drugs on employees. Those persons were trained to recognise people who may be on site in an "unsafe" condition. 3 The policy promulgated in 2001 is the policy currently in operation at the steel works. We shall refer to it as "the Policy" in this recommendation. In contrast to the 1997 policy, the Policy was ultimately the subject of considerable resistance by one of the industrial unions having members at the steel works, the Australian Workers' Union, New South Wales ("the AWU"). 4 The AWU's resistance to the Policy can be described as being in two stages. The initial stage involved industrial disputation and resulted in considerable attention by Members of this Commission sitting in Wollongong in industrial dispute proceedings pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'). Those matters by and large concerned individual employees who were affected by the Policy although no doubt had their roots in objections by the AWU to what was ultimately described as the invasive form of testing within the Policy. 5 At a later stage, the AWU sought to resist the Policy by means of seeking declaratory relief under s 154 of the Act and other relief under various sections of that Act. That relief was brought by Mr Peter Cassidy but was plainly sponsored by the AWU. The applicant in those proceedings sought, inter alia, the following relief: a declaration that the respondent's Alcohol and Other Drugs Management Procedure ("the Policy") does not form part of the contract of employment between the applicant and the respondent. 6 Those proceedings were settled. Consent orders were made by the Commission which included the following order: 1(a) The application for declaratory relief by the Applicant be dismissed, and may not be re-instituted as a claim in any other proceedings under the Act except by leave of the Commission in Court Session. Subject to the terms of the arbitral proceedings described in order 1(b) the Respondent will not oppose the Applicant seeking leave of the Commission in Court Session reinstituting other proceedings under the Act. 7 We also note that undertakings were given by the parties to those proceedings to the Commission in Court Session as follows: 2. The Commission in Court Session notes that the AWU is to bring an application for arbitral proceedings in respect of the Policy accompanied by an Alcohol and Drug Policy document in support of the application, and that the Policy is to continue in operation until such time as the Commission by order requires its alteration. 3. The Commission in Court Session further notes the undertakings by the parties to the following effect: (a) The AWU undertakes to the Commission and to the Respondent that the evidence in matter no IRC 2041 of 2002 will be tendered in the arbitral proceedings. Such evidence will be taken to be the evidence of the witnesses who have been called and cross-examined in matter No IRC 2041 of 2002 and shall not be the subject of supplementary examination in chief or cross-examination without leave of the Commission being granted. The above mentioned leave requirement does not restrict a party calling fresh evidence. The fact that the evidence in matter No IRC 2041 of 2002 is to be tendered by the AWU in the arbitral proceedings is not to be taken to mean that the evidence brought against the AWU in matter No IRC 2041 of 2002 is to be taken as the AWU's evidence per se in the arbitral proceedings. (b) Any further evidence on behalf of the AWU in the arbitral proceedings is to be filed and served on or before 23 December 2002. (c) Any further evidence on behalf of BHP Steel (AIS) Pty Ltd in the arbitral proceedings is to be filed and served on or before 10 March 2003. (d) Any evidence in reply on behalf of the AWU in the arbitral proceedings is to be filed and served on or before 31 March 2003. (e) The AWU undertakes to the Commission and to the Respondent that it will not insist on further conciliation in the arbitral proceedings. However, the question of whether there is to be conciliation remains a matter for the Commission. 8 It is by this means that the present application comes to the Commission. The AWU brought the application pursuant to ss 130, 135 and 136 of the Act and claimed as follows: A. The applicant claims: Arbitration in relation to the Respondent's alcohol and other drugs management procedure ("the Policy) and the alternative alcohol and other dugs management procedure ("the Alternative Policy") a copy of which is annexed to this Application and marked with the letter "A". The Applicant seeks an order or award, or in lieu thereof, a direction or recommendation from the Commission that the Alternative Policy be substituted for the Policy. 9 The annexure "A" referred to in the claim was amended during the course of the proceedings, the matter ultimately proceeding upon the basis of exhibit 5A. We have annexed exhibit 5A to our recommendation so as to more effectively define the scope of the issues in the proceedings. 10 It will be observed at once that the AWU's application, so described, is a claim to amend certain parts of the Policy. It is not an application which totally opposes the Policy. 11 It should also be identified that the scope of the issues in the proceedings were further refined by submissions made by counsel. It is appropriate at this juncture to reiterate the indebtedness that we have to counsel in the helpful and skilful way that they presented their respective cases in this matter. 12 In a manner consistent with the approach adopted by the parties to the proceedings, we were further assisted at the conclusion of the proceedings, by a document which confined the issues ultimately existing between the parties in relation to exhibit 5A. We propose therefore to set this document out in full below: "MATTERS IN CONTEST" 1.0 PURPOSE The Company Policy covers all persons on site. The AWU amended policy is intended to cover only employees of Company. The AWU concedes that the Company Policy has applied to contractors on the site without difficulty (T139). Furthermore, the AWU concedes that its opposition to the Policy applying to others on the site (other than employees of the Company) is not based on any evidence (T18, 13/6/03) 2.0 SCOPE The AWU Policy seeks to insert an additional provision seeking a non-victimisation or harassment statement. The AWU admits that there is little evidence to support this claim (T139) but claims that the Company has identified no prejudice to its position should the claim be granted. The AWU accepts that the claimed statement is not a fundamental point (T140) and that the claim is "not on same plateau" (as the definition of significant incident) (T169). Furthermore, the AWU describes this claim as "not one of those live or die matters in these proceedings" (T19, 13/6/03). 4.0 DEFINITIONS In the alternate Policy put forward by the AWU, the definition of "Peer" is removed. The AWU has bought no evidence to support the removal of Peer review and has left it to the Commission to determine whether or not the concept of peer review should remain in the Policy. The deletion of peer review is not strongly pressed by the AWU. The AWU presses for the insertion of their definition of "significant incident" in the Policy. In support of this claim the AWU relies on the evidence of Mr Gillespie. During the proceedings the AWU effectively conceded that the "damaged mirror" (in the Cassidy incident) would fall within the AWU definition (T25, 13/6/03). 5.0 MINIMUM ALLOWABLE LEVELS OF ALCOHOL AND OTHER DRUGS 5.1 ALCOHOL The Company Policy as reflected in this subclause is not challenged (T19, 13/6/03). 5.2 OTHER DRUGS The AWU alternate Policy required that screening tests on site be performed in a laboratory accredited to Australian Standards, though this claim was not pressed at hearing (T23, 13/6/03; T83, 23/6/03). The only issue between the parties with respect to this part of the Policy is the cut off level for cannabis testing. The AWU seeks a minimum cut off level of 100ug/l whilst the Company maintains that its Policy of 50ug/l should not be altered. 5.3 PRESCRIPTION MEDICATION The AWU deletes from its draft Policy any obligation on an employee to advise his/her Supervisor of the need to take prescription medication. However, the AWU alternate Policy imposes an obligation on employees ("shall") to consult their GP or Treating Specialist and to seek advice whether the medication they are taking "would" impair their work performance. It is to be noted that the AWU does not oppose an employee disclosing the need to take prescription medication but rather, it is the disclosure to the Supervisor which is opposed (T162). In the AWU's proposal the Supervisor is effectively cut out of the process. There is no issue between the parties that an employee should advise the Company "tester" if he/she has taken either prescription or non-prescription medications (T21 and T22, 13/6/03) 6.0 PROCEDURE In its draft Policy, the AWU seeks to amend the employee assistance program (EAP) to make it "independent of BHP". The AWU puts that its modifications sought are "minor" but such description is not agreed by the Company. The AWU has brought no evidence to support its claimed amendments nor any evidence that the existing EAP does anything other than assist employees. 6.1 MANAGING "UNSAFE" EMPLOYEES The AWU objects to peer review but does not strongly press this issue (T140, 169). The AWU submitted that the objection to peer review is not fundamental but ties the issue of peer review to an acceptance of the AWU definition of "significant incidents" (T22, 13/6/03). Whilst the AWU seeks to tie these issues together, it is the Company's submission that there is no link. 6.2 TESTING PROCESSES The AWU opposes "challenge testing" and puts it in a similar manner to its opposition to "peer review" (T23, 13/6/03). (See also Clause 6.2.3) 6.2.1 EMPLOYEE SELF-TESTING The Company Policy on self-testing is accepted by the AWU. 6.2.2 TESTING FOR CAUSE The AWU presses a restricted definition based on (but in amended form) Regulation 341 of Occupational Health & Safety Regulation 2000. The Company opposes this definition as too narrow. 6.2.4 FITNESS TO RETURN TO WORK POLICY The Company presses the maintenance of its existing Policy and submits that its rationale for doing so is supported by the expert evidence. The AWU proposes the deletion of cannabis from the Company's return to work testing regime and claims that an employee should be permitted to resume work if that employee's cannabis levels are declining. This is put by the AWU against the evidence that declining cannabis levels do not rule out use of cannabis in the intervening period. 6.2.5 ONGOING FITNESS FOR WORK TESTING The AWU has deleted this provision from its alternate Policy and in doing so has sought the deletion of random testing over a six month period following the return to work. This is put by the AWU though it properly acknowledges that the evidence, even its own, is against the deletion of random testing. 7.0-7.6 FIRST AND SUBSEQUENT POSITIVE TESTS The AWU claims that the Company Policy is arbitrary and discretionary (T172), yet brings no evidence that this part of the Policy has ever acted unfairly. 8.0 REFUSAL TO UNDERTAKE TEST The AWU claims that it is "simply seeking to remove what appears….to be arbitrary and vague provisions" (T172). This is put even though it was not raised as an issue on 13 June 2003 (see, for example, Exhibit 4). 9.0 TAMPERING WITH TEST SAMPLES The AWU does not oppose the Company Policy on this matter. 10.0 POSSESSION AND CONSUMPTION OF ALCOHOL AND ILLEGAL DRUGS The AWU does not oppose the Company Policy on this matter. 13 It will be clear from the above description of the course of these proceedings that the AWU opposes various aspects of the Policy and in lieu thereof proposes an Alternative Policy. It sought an order or award making the Alternative Policy, or alternatively a direction or recommendation that the Alternative Policy be substituted for the Policy. The Company accepted that the Commission had jurisdiction to grant the relief sought by any of the mechanisms proposed by the AWU but opposed the claim. In the event that the Commission made a recommendation, the company sought the opportunity to be heard further as to whether it would accept or not accept the recommendation made by the Commission. 14 The resolution of the issues in these proceedings represent some real difficulties and ultimately requires close attention to be given to both the nature and purpose of the Policy and the particular provisions of it. 15 However, we have to decided to generally approach the matter in accordance with the observations of Walton, J, Vice-President in Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 at 182 as follows: This approach is particularly required given the complex and difficult issues besetting this dispute. Those issues involve a counter-balancing of various rights or interests including safety and health in the working environment, fair and reasonable treatment in employment and particularly in relation to discipline in employment (and the management of a workforce in relation to same), privacy, protection against violation of personal freedom as well as a consideration of local cultural, business and economic matters. There is no easy balancing of these and other issues raised in the dispute. They intersect with various statutory and common law requirements. There are subsidiary matters which also affect each issue. For example, "testing" raises issues including the maximum acceptance level of drug and alcohol content, methods of testing, the accuracy of testing and the measurement of impairment resulting from drug and alcohol use. In a context in which both parties accept the need to regulate drug and alcohol use and there are issues concerning safety at the workplace, the benefits which will derive from obtaining a common approach to any drug and alcohol programme can not be overstated. The recommendation which the Commission makes, and the provision of a trial period, is designed to enhance the achievement of that objective by placing the parties in a position where their respective positions (so far as can reasonably be accommodated as a result of conciliation at this time) are preserved whilst some closer review of the policy is undertaken. 16 We have also borne in mind the observations of the Full Bench of the Western Australian Industrial Relations Commission in Court Session in BHP Iron Ore Limited v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (1998) 82 IR 162: Clearly, it is not for the Commission to manage the affairs of the Company as if it was an alternative or surrogate manager. As counsel for both parties correctly suggest, the Commission is required to make an objective assessment of the programme. As a consequence, it is not the function of the Commission, on this occasion, to determine what is the most ideal drug and alcohol programme in the circumstances, but to determine where this programme satisfies acceptable industrial standards. Further, as counsel for the Union suggests, that assessment must be made having regard to industrial relations considerations. 17 The balancing of these considerations, in our view, points firmly in these proceedings to the desirability of the Commission at this stage making a recommendation to the parties pursuant to s 136(1)(a) of the Act. This should maximise the prospects of the parties reaching a consensual position as to the operation of the drug and alcohol policy at this workplace. 18 We should emphasise that, in making this recommendation, we are mindful that the proceedings were attended by considerable conciliation processes with progress having been made on both sides of the record but some issues remaining insoluble. However, if the recommendation is not acceptable to either party then we will simply proceed, after further hearing them, to determine whether we will make an order or award in these proceedings. 19 As we make a recommendation, and for the purposes of simplicity as our recommendation may require communication to the workforce, we propose for consistency to follow the subject headings contained in the outline of issues which has earlier been set out. The form of the recommendation below may need refinement in due course in the event that the parties indicate their acceptance of it. We shall, therefore, set out our recommendation below in accordance with the issues document seriatum. As we give a recommendation we shall only provide a short discussion as to our views (we will provide further reasons in the event that we are required to consider the application for an award or orders): 1.0 PURPOSE 19.1 The AWU submitted that the Policy should be limited in it's application to employees of BHP and not as is presently the case, also to employees of contractors engaged on the steelworks site. BHP argued that its occupational health and safety obligations extend to all persons at the workplace. We note the provisions of the Occupational Health and Safety Act 2000 in that regard (s 8(1) and (2)). We further note the large number of employees of contractors, estimated to be in excess of 2000, regularly working on the site and the absence of evidence which might suggest that contractors or their employees have any particular difficulty with the operation of the Policy. 19.2 It is recommended that the Policy continue to apply equally to contractors as to all other persons on the site, including employees of BHP. 2.0 SCOPE 19.3 The AWU submitted that the inclusion in the Policy of an acknowledgment on the part of BHP that the Policy will not be used to victimise, harass or intimidate employees does no more than expressly recognise what should be presumed to be the case in any event, that is, that BHP is applying the Policy in an objective and legitimate manner. BHP contended that the existing dispute resolution procedures contained within the steelworks industrial instruments contain adequate safeguards for employees so aggrieved and give such employees the ability to pursue the resolution of disagreements through to the Commission, if necessary. In the absence of satisfactory evidence the Commission should not conclude that the Policy is not being applied in an objective and legitimate manner and any such inference is provocative and industrially inappropriate. 19.4 It is recommended that the present expressed scope of the Policy remains unaltered. 4.0 DEFINITIONS 19.5 The AWU sought the deletion of the definition of "Peer" consistently with its opposition to "challenge testing" and "peer review". We will come to those matters in due course. 19.6 The AWU further sought to define "significant incident" by reference to definitions contained within the Occupational Health and Safety Act 2000 and the associated Regulations. It is accepted by the AWU that BHP supervisors will still be invested with a discretion to require alcohol or other drug testing upon the occurrence of a significant incident but the definitional parameters of the AWU proposal will clarify and assist in the exercise of that discretion. The AWU accepted that certain of the sub-paragraphs in the proposed definition may be agreed as redundant or having no application to the BHP Port Kembla site. 19.7 BHP contended that the definition of "significant incident" proposed by the AWU, limited as it is to those incidents which fall within the statutory framework of a "notifiable non-disturbance occurrence" is more restrictive than the existing Policy; is complex and difficult to interpret in certain respects; is not capable of achieving the purpose of the Policy; is ambiguous and uncertain and robs the Policy of its present flexibility. BHP submitted that the AWU proposal, by its narrower and more prescriptive definition, may preclude the testing of an employee who had shown a clear and significant error of judgement consistent with impairment. We note in that regard, the agreed position between the parties that, notwithstanding any real or perceived restrictions, the AWU proposal would be broad enough to include incidents such as that which gave rise to earlier dispute proceedings namely, a broken wing mirror on an overhead crane. 19.8 We recommend that, subject to the removal of redundant or non-applicable sub-paragraphs, the AWU proposal be implemented and trialled for a period of twelve months at the conclusion of which, the parties will report to the Commission as to this and other aspects of the Policy. 5.0 MINIMUM ALLOWABLE LEVELS OF ALCOHOL AND OTHER DRUGS 19.9 The AWU proposal to fix the minimum detection level for cannabis at 100 ug/L adopts the standard implemented by BHP Iron Ore Limited in its drug and alcohol policy in Western Australia. That policy was the subject of proceedings before the Western Australian Industrial Relations Commission in Court Session which concluded that the policy was fair and reasonable ( BHP Iron Ore Limited v Construction, Mining, Energy, Timberyeards, Sawmills and Woodworkers Union of Australia, Western Australian Branch (1998) 82 IR 162 at 171). 19.10 The AWU accepted that increasing the minimum detection level from 50ug/L to 100ug/L may result in a higher number of "false negative" results but argued that this was merely demonstrative of the fact that whichever cut off point is applied there will be a resultant cause and effect. In that regard, the AWU pointed to the expert evidence of Professor Christie who said: It has been established that setting a higher cut-off level introduces a risk of failure to detect very recent use (within 4-6 hours), and therefore impairment. An inevitable consequence of setting a low limit is an increase in the duration for which an individual will return a positive result after smoking cannabis and a potential increase in false positive results and later: The issue is making a decision, should I raise the cut-off level and fail to detect individuals, but detect individuals closer to their period of intoxication, or should we set a level to make sure that it detects all individuals that are intoxicated, or most individuals who have used cannabis for on average, a longer period. 19.11 Clearly, the selection of the minimum detection level for cannabis involves elements of judgment or trade off. In such a balancing exercise, the AWU submitted that the Commission can take comfort from the conclusions reached by the Western Australian Commission in the BHP Iron Ore case and further, that the workability of the 100ug/L minimum detection level for cannabis is amply demonstrated by its continuing application (albeit presently under review) in Western Australia. We note in that regard, the evidence of Professor Christie who has moved from the position he adopted in the BHP Iron Ore case in support of the 100 ug/L minimum detection level to a position based on more contemporary scientific wisdom (and the relevant Australian Standard AS/NZ 4308:2001) in favour of the 50ug/L minimum detection level presently in operation in the Port Kembla steelworks. 19.12 BHP argued that the 100 ug/L minimum detection level carried with it a significant probability that impairment may go undetected although we may note, in that regard, the common theme throughout the evidence of experts called on both sides of the record to the effect that the correlation between concentrations in body fluids (urine) and degree of intoxication is poor and further that there is significant scientific uncertainty as to the direct relationship between impairment of motor skills and judgment and cannabinoid levels. 19.13 BHP also argued that, in circumstances where a positive on-site test result merely established that actual impairment cannot be ruled out, the position is effectively no different for testing at 50ug/L or 100ug/L and further that the lower of the two test levels is consistent with the relevant Australian Standard, departure from which necessarily brings with it results drawn from compromised procedures the efficacy of which cannot be guaranteed. BHP accepted however, that as stated by Professor Christie, it is possible to have a screening test at the steelworks which uses 100ug/L as a minimum detection level for cannabis. 19.14 We make no recommendation for change to the 50ug/L minimum detection level. 5.3 PRESCRIPTION MEDICATION 19.15 The AWU submitted that the mandatory disclosure of sensitive and personal information to supervisors who are not medically trained; who are under no ethical or professional obligations as to confidentiality and in circumstances where there are no protocols in place at the steelworks to protect privacy of information so disclosed, is neither fair nor just in the context of a framework for the conduct of industrial relations. Conversely, the AWU proposal provides for a regime that justly and fairly balances the rights and obligations of employees and employers on the site. 19.16 BHP relied on evidence indicating that the present measure has worked well; that there is a co-operative approach between employees and supervisors; that supervisors deal more and more with and resolve issues without the need to involve the BHP Works Occupational Physician (although we note the existing Policy specifically requires supervisors to seek advice from the Occupational Physician); that employees have consented to the sharing of information; that there have been no complaints from employees about the process; that it is unrealistic for the Occupational Physician to stand in the place of 300-400 supervisors across the site and at any time of the day or night, as the first recipient of such information and that the AWU proposal giving the primary role to the treating doctor who may not have the necessary detailed knowledge of the steelworks is unworkable. 19.17 We consider that the evidence overwhelmingly favoured the AWU position on this matter in that some modification to this aspect of the Policy is warranted. We recommend that the mandatory disclosure of information about health conditions or prescription medications be made optional by the substitution of the word "may" for the words "are required to" and that where an employee who may feel a particular sensitivity about such disclosure so chooses, he or she will be bound by the AWU proposal which can sit in the Policy as an alternative process. 6.0 PROCEDURE 19.18 We make no recommendation for change to this clause. 6.1 MANAGING "UNSAFE" EMPLOYEES 19.19 We make no recommendation for change to the nominated peer/supervisor arrangements presently prescribed by this clause. 6.2 TESTING PROCESSES 19.20 We make no recommendation for removal of the "challenge testing" arrangements and note that in its present form, it provides an avenue of redress for employees dissatisfied with the outcome of nominated peer/supervisor investigations. 19.21 We make no recommendation for removal from the "fitness to return to work" testing regime, of the existing provisions regarding cannabis and we note in that regard the unchallenged evidence of Professor Christie to the effect that the underlying theory in detecting re-use is that the best estimate of the half-life of cannabis metabolites in urine (the time taken for the concentration to fall by half) is three days in humans. Detection of re-use of cannabis is based on a finding of an exceptional deviation from this continuing decline over a period of days. Thus, under the existing return to work testing regime and on the above assumption that concentration levels of cannabis metabolites in urine could, absent re-use, be expected to have a half-life of three days, any person presenting for return to work testing following an initial positive cannabis test result who shows creatinine-corrected urinary concentration of cannabis metabolites that increases by more than 1.5 in subsequent specimens is assumed to have re-used during the intervening period. 19.22 On one view of those considerations, the present system of return to work testing has sufficient inherent protection against false positive results which when coupled with the assumed natural rate of dissipation of cannabis metabolites provides adequate and reasonable safeguards against unfairness or injustice. As the expert evidence indicates, the same principle can be said to apply to the "ongoing fitness for work" testing (otherwise referred to as random monthly testing) which the AWU seeks to remove. This is so because an individual cannot return to work before a negative alcohol or blood test is recorded and in such circumstances, the likelihood of a positive result being returned under a random monthly testing regime would be negligible in the absence of re-use. 7.0 FIRST AND SUBSEQUENT POSITIVE TESTS 19.23 We note in this section for clarity that the so-called "first positive test" in fact applies inter alia to employees who have tested positive previously albeit within a period not exceeding 12 months. It is appropriately described by the AWU as a form of probation which can vary as between individual employees as to duration but which cannot exceed 12 months. This is said by the AWU to be arbitrary and should be replaced by a defined period of 6 months after which, on the basis that the employee does not re-test positive, the employee's alcohol and other drugs record is expunged. 19.24 The AWU also sought to replace the word "suspended" as it presently appears in cl.7.0 of the Policy with the words "stood down". The AWU further sought to remove the employer's unfettered discretion to suspend without pay, those employees who return second and third positive tests. The only Policy guidance in determining the length of any suspension without pay is in the case of a second positive test, the employer must have regard to "the duration since the previous incident and the general behaviour and work record of the employee" and in the case of a third positive test, the length of the suspension will be "for a longer period". Additionally, the AWU sought to remove the unfettered discretion with which the employer is invested, to determine whether an employee is liable for dismissal upon there being a further occurrence (ie, a fourth positive test) "within a reasonable period". The AWU submitted that placing a three month parameter around this discretionary power is fair and just. Finally in respect of this section of the Policy the AWU sought the removal of cl.7.5 which effectively allowed the employer, on a case by case basis, to take unspecified action against an employee other than action which is set out in the Policy. 19.25 By its claim the AWU sought to expunge the record of an employee who following a first, second or third positive test, does not record a subsequent positive test within six months of the previous test. 19.26 BHP contended that such a proposal if adopted, would deprive the Policy of its deterrent effect by significantly weakening the consequences for employees who repeatedly return positive tests and would mean, in effect, that an employee could have three positive tests within a period of twelve months and still have the third positive treated as a first positive thus rendering the employee immune from further disciplinary action. 19.27 BHP further submitted firstly, that all of the experts who gave evidence before the Commission in these proceedings attest to the necessity for post-positive random testing and to the deterrent value of random testing in a disciplinary context and secondly, that no evidence was called in support of the AWU contention that this aspect of the Policy places an unfair or harsh condition on the continued employment of an employee. Dr Darling, for example, was not challenged when he spoke of the post-positive testing regime as providing significant incentives for behavioural change in employees and the consequent benefits of such change to the overall health and safety of persons on site at the Port Kembla works. 19.28 We recommend that there be a progressive or graduated approach to the "probationary" arrangements whereby employees in the post-positive regime revert to the previous level as it is described in the Policy after a maximum of 6 months in the case of a first positive test and 9 months in the case of a second positive test and 12 months in the case of a third positive test. 19.29 We make no recommendation as to the duration of suspension without pay and would observe that avenues of redress are readily available in any case where the period of suspension is thought to be unreasonable. 19.30 The same observations are made in respect of the "reasonable period" within which "the employee will be liable for dismissal" and we make no recommendation for change to cl.7.4 of the Policy. We do, however, emphasise that great care should be exercised in dealing with acts of transgression as it is at least implicit from the Policy that a transgression might not necessarily relate to misbehaviour or misconduct in the sense that those terms are ordinarily understood and applied. 8.0 REFUSAL TO UINDERTAKE TEST 19.31 The AWU submitted that this clause in its existing form is liable to cause confusion and that on its face, it contains an element of double jeopardy. This arises because refusal to undertake a test on the one hand is deemed to be a positive test result with the accompanying consequences and then further or additionally, it is to be treated as a disciplinary matter in the same way as any other refusal on the part of an employee "to comply with a Company Policy or procedure". 19.32 For it's part, BHP argued that no evidence had been led pointing to elements of confusion and secondly, that this clause is clearly referrable to a first refusal (which invokes the deemed positive result) and a further refusal (which has other connotations). We would observe that the comma after the word "Further" in the second sentence of the existing clause 8.0 of the Policy lends itself to a different construction than that for which BHP contends and adds weight to the AWU contention. The comma has the effect of giving the word "Further" the same or similar meaning as the words "in addition to the foregoing". If the comma were removed, the word "Further" would be given its adjectival meaning by reference to the word following it namely, the word "refusal". We are of the view that there should be a form of disciplinary sanction available for appropriate use in cases where there is repeated refusal to undertake tests. This is particularly so when it is considered that the AWU has adopted a position in support of a testing regime per se. 19.33 For clarity, we recommend the removal of the comma after the word "Further" at the beginning of the second sentence of the existing clause 8. We otherwise make no recommendation for change to this clause. Again, however, we point to the need for considerable care to be exercised by BHP in the implementation of this aspect of the Policy particularly as to the reasons why an employee may refuse to undertake a test. A clear example of the inappropriate application of disciplinary sanctions is to be found in the decision of the Full Bench of the Western Australian Industrial Relations Commission in Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003). In that case, it was found that the employee's dismissal following a refusal to undertake a drug test was an oppressive exercise of the employer's right to dismiss and it seems to us that the case stands as others may also, as a clear statement of the need to approach the use of disciplinary sanctions within the context of the Policy with due care and caution. 19.34 Finally, we recommend that the Policy may be reviewed in 12 months upon the application to that effect. 20 By 28 January 2004, the parties shall file and serve a document setting out whether: i. The party accepts the recommendation ii. In the event of non-acceptance whether they wish to be further heard before the Commission considers the making of an award or orders 21 If both parties accept the recommendation in the document so filed, a copy of the amended Policy shall be filed before 5 February 2004 and we shall then conclude the matter administratively in chambers. 22 If any party rejects the recommendation, then we shall consider the making of an award or order in Chambers based upon the record of the proceedings, unless a party seeks a further hearing in the document served pursuant to paragraph [20]. In the event that a party seeks such a further listing, the matter shall be initially listed before Grayson DP under delegation for the purposes of programming at a date to be fixed by him in due course. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.