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Vulcan Steel Limited v Manufacturing & Construction Workers Union (2021) is an interesting case that was fought over urine drug testing vs oral fluid drug testing.
Vulcan Steel had the following clauses in their drug & alcohol policy.
3.3 Drug testing will utilise hair and/or urine and/or saliva test techniques, as outlined in the DASP.
8.3.1 Prior to undergoing a test, a test consent form will be signed by the employee consenting to the relevant method(s) of testing.
The Employment Relations Authority ruled that, as the policy stood, this gave employees the right to choose what form of testing they wanted.
Vulcan Steel made two mistakes in their policy:
- They weren’t specific. Decide what form of testing you will be using, and state this clearly. Don’t include additional forms of testing ‘in case we might need it in the future’ — this just adds more ways for the process to go wrong. If you are going to be using different forms of testing, be specific about what situations they will be used in. E.g:
Example Company Ltd will use urine drug testing for pre-employment, random, and rehabilitation drug testing, and oral fluid drug testing for post-incident and reasonable cause drug testing.
All urine drug testing will be conducted in accordance with AS/NZS 4308:2008 (or subsequent revisions).
All oral fluid drug testing will be conducted in accordance with AS/NZS 4760:2019 (or subsequent revisions).
All alcohol testing will be conducted with a breathalyser verified to AS 3547:2019 (or subsequent revisions).
- Their policy was too prescriptive. Including more detail in a policy leaves more ways for it to go wrong. A drug testing policy should include enough detail for an employee to consent to this, but drug testing procedures should be in an entirely separate document unrelated to the policy.
A policy should cover what (this is what we’ll be doing), and procedures should cover how (this is the process we go through when we carry out drug testing).