New South Wales Branch
PO Box 277 HURSTVILLE NSW 2220
Tel/Fax: 02 9579 2333
Mob: 0412 880861
Email: hughmc@artionsw.com.au
ABN: 93149961882
11 November 2014
ARTIO NSW INFORMATION CIRCULAR 38/2014
DP World Wins Urine Testing Appeal
DP World is free to resume urine testing under its national drug and alcohol policy after a five-member
Fair Work Commission full bench upheld its challenge to a deputy president's ruling that its enterprise
agreements excluded the method.
The Maritime Union of Australia (MUA) in November 2012 asked Deputy President Anna Booth to
resolve a dispute under agreements covering DP World's Fremantle, Brisbane, Sydney and
Melbourne ports when the company sought to introduce the new policy.
The new policy allowed DP World to require a urine test if a worker recorded an initial positive oral (or
swab) test.
The agreements contain an identical clause 17.8, noting that the parties "acknowledge that the
Company's drug and alcohol policy will incorporate a testing regime which includes random drug and
alcohol testing and will utilise swab testing".
In a ruling in March this year, Deputy President Booth said the meaning of the clause was unclear,
and it was therefore "necessary" for her to consider the "merit" of using urine for the second test (see
Related Article).
The deputy president decided "on balance" that the proposed urine test was "unjust and
unreasonable" and ordered that DP World use oral fluid for both the initial and follow-up tests. She
also ordered that the second test should cover "the same suite of drugs" as the first, not a wider
range.
On 6 November, Vice President Joe Catanzariti, Senior Deputy Presidents Ian Watson and Jonathan
Hamberger, Deputy President John Kovacic and Commissioner Donna McKenna quashed Deputy
President Booth's orders, finding that she had fallen into "significant error" in moving to consider the
merits of urine testing instead of looking at the surrounding circumstances and context to interpret the
agreements' clause.
"This is because the dispute before the Commission did not concern whether it was appropriate for
urine testing to be used for the second test or whether its use was unjust or unreasonable - but,
rather, whether clause 17.8 permitted or precluded urine testing for the second or confirmatory test,"
the bench said.
Going on to consider the surrounding circumstances itself, the bench said:


Urine testing was an established part of the regime at each of DP World's terminals;
The MUA's log of claims for the agreements had sought the Fremantle system, which, while
not random, included urine testing;


Employees did not raise any concerns about urine testing when DP World consulted them on
the new policy; and
Clause 17.8 did not refer to alcohol breath testing despite it also being an established part of
DP World's arrangements.
It said these factors "supported an interpretation of clause 17.8 that it does not preclude the use of
urine testing for the second or confirmatory drug test".
Further Information
DP World Brisbane Pty Ltd and Others v Maritime Union of Australia [2014] FWCFB 7889 (6
November 2014)
DP World Brisbane Pty Ltd and Others v Maritime Union of Australia [2014] FWCFB 7890 (6
November 2014)
Please contact ARTIO NSW Secretary/Treasurer, Hugh McMaster, telephone 0412 880861, email
hughmc@artionsw.com.au, if further if information is required.
Adapted from article courtesy of Workplace Express, an E-News Subscription Service