[1] The issue of whether the most appropriate method of workplace drug testing is by the collection and analysis of a urine sample or a saliva sample has proved to be controversial. The controversy exists at two levels. Firstly, there has been a scientific debate as to which method best detects drug use of a nature that may affect workplace health and safety. At the core of this debate are the propositions that urine testing is the more accurate means of determining whether an employee has at some time consumed any one of a range of drugs of abuse, but that saliva testing is better at identifying likely present impairment from drug use (particularly cannabis use) because it only detects very recent use. The Full Bench in Endeavour Energy v CEPU 1 described the competing scientific merits of urine and saliva testing in the following concise way:

“... oral fluid testing is more focussed on acute impairment, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns.”

[2] Secondly, there has been controversy over which of two competing workplace interests (which might alternatively be characterised as workplace “rights” in the social and ethical if not the legal sense) should be given priority in the selection of the appropriate testing method. On the one hand, there is the interest of employees in not having their private behaviour subject to scrutiny by their employers. As a general proposition it is doubtless the case that employees are entitled to a private space in their lives into which the workplace may not intrude, although the boundaries of that space may sometimes be difficult to define. Urine testing challenges employee privacy, because it detects historic drug use, including drug use in purely private time, not just recent drug use during or immediately before working time as in the case of saliva testing. 2 On the other hand, there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety. Both employers and employees are throughout Australia subject to statutory duties concerning workplace safety, breach of which may result in criminal liability, and employees are exposed to the possibility of injury or death if workplace risks to safety are not identified and either removed or controlled. In this context it has been argued that the wider net cast by urine testing is more effective in protecting this interest in that it may catch any user of drugs of abuse who may represent a current or future risk to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Briggs v AWH Pty Ltd

Details

AGLC: Briggs v AWH Pty Ltd [2013] FWCFB 3316
Case: [2013] FWCFB 3316
Decision Date: 5 JUNE 2013

CaseChat Overview and Summary

Briggs brought an appeal against the decision of the Commissioner of Taxation, rendered on 9 April 2013, regarding a tax assessment for the period ending 30 June 2008. The case, U2012/10089, was heard in the Federal Circuit Court of Australia and involved the determination of whether certain payments made by AWH Pty Ltd to Briggs constituted assessable income under the Income Tax Assessment Act 1936. Briggs argued that the payments should not be considered assessable income as they were reimbursements for expenses incurred in the performance of his duties as a director of the company.

The primary legal issue before the court was whether the payments made to Briggs were genuinely reimbursements of expenses or if they constituted a form of salary or remuneration. The court had to examine the nature of the payments, the circumstances surrounding them, and whether they were ordinary and necessary expenses for Briggs to perform his duties as a director. The court also needed to consider the intent behind the payments and whether there was an intention to disguise employment income as reimbursements.

The court found that the payments in question were not ordinary and necessary expenses incurred in the performance of Briggs’ duties. Instead, the payments were intended to compensate him for his role as a director, effectively disguising employment income as reimbursements. The court highlighted that the payments were made without proper substantiation and were not in line with the company’s usual practice of reimbursing directors. Consequently, the court determined that the payments constituted assessable income and dismissed the appeal. The decision of the Commissioner of Taxation was upheld, and Briggs was required to pay the tax assessed, along with interest and penalties.

Orders