[2020] FWC 1325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Endeavour Energy Network Management Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; The Association of Professional Engineers, Scientists and Managers, Australia
(C2019/3115)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 APRIL 2020

Alleged dispute about a matter arising under an enterprise agreement - dispute filed by Endeavour Energy concerning proposed changes to its Alcohol and Other Drugs Procedure (‘AODP’) – electricity distribution and supply industry – high-risk and low-risk work – existing procedure result of earlier Commission proceedings at first instance and on appeal – ‘interest-based’ consultation with Unions and employees – no agreement reached – proposal to provide a BAC level of 0.00% for all employees – proposal to introduce random urine drug testing and oral fluid drug testing on a ‘blended’ (50/50) basis – benefits and detriments of urine and oral fluid testing – compliance with Australian/New Zealand standards – dual policy imperatives – deterrence – identification of drug and alcohol use affecting health and safety of employees – no testing regime detects or measures impairment for drugs and alcohol in the workplace – expert evidence differs in emphasis about preference for urine testing over oral fluid testing – experts agree that the two methods of testing have different benefits and disadvantages – insufficient or unsatisfactory evidence to justify change of BAC level of 0.00% for all employees - no justification for altering BAC levels from 0.02% for high-risk employee testing and 0.05% for all other employee testing – merit in adopting 50/50 ‘blended’ random urine and oral fluid testing for presence of drugs – acceptance that urine testing will detect long term or chronic drug use , detect a wider range of drugs and will reduce incidence of false non-negative results – omissions from existing AODP to be included in revised procedure – parties to prepare draft procedure in accordance with Commission’s conclusions – dispute otherwise resolved.

BACKGROUND

[1] On 16 May 2019, Endeavour Energy Network Management Pty Ltd (‘Endeavour’ or the ‘Company’) filed an application pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure (‘DSP’) of the Endeavour Energy Enterprise Agreement 2017 (the ‘Agreement’). The substance of the dispute is encapsulated in the relief sought by Endeavour which is set out at Q 3.1 of the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. It reads:

‘A determination by the Commission, upon arbitration of the dispute, that:

Endeavour Energy Network Management Pty Ltd may proceed to implement the new Alcohol and Other Drugs Procedure (AODP) which provides for:

(i) testing of alcohol to a Blood Alcohol Concentration (BAC) of 0.00% for all workers;

(ii) random testing for drugs by random selection between urine and oral fluid testing (with 50% of random tests being of both modalities);

(iii) second confirmatory drug testing follow a non-negative oral fluid test being by urine; and

(iv) "for cause", suspicion, return to work and targeted testing for drugs being by urine,

on the terms and for the purposes set out in the AODP.’

The identified respondents are three unions, namely the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’), United Services Union, and Professionals Australia (together, the ‘Unions’).

Endeavour’s Operations

[2] As an electricity distribution business, Endeavour supplies electricity to over one million customers in Greater Western Sydney, the Blue Mountains and the Midwest, the Southern Highlands, the Illawarra and the South Coast, covering 24,980 square kilometres. The infrastructure includes 433,100 power poles and streetlight columns, 164 zone substations, connected by 59,300 kilometres of power line.

[3] Endeavour is 50.4% owned by a consortium of long-term private investors, with 49.6% owned by the State of New South Wales, through a system established under the Electricity Retained Interest Corporations Act 2015 (NSW). The assets of the Endeavour business are subject to a 99-year lease from the NSW Government. The employees were transferred to Endeavour Energy Network Management Pty Ltd through the lease arrangement.

The present dispute

[4] It is noteworthy that Endeavour’s current Alcohol and Other Drugs Procedure (‘AODP’) was the subject of an arbitrated decision of the Commission (Hamberger SDP) in March 2012 in Endeavour Energy v CEPU and Others[2012] FWA 1809 (the ‘2012 Decision’). A number of expert witnesses in that case provided evidence in these proceedings. The 2012 Decision was unsuccessfully appealed to a Full Bench of the Commission in Endeavour Energy v CEPU and others[2012] FWAFB 4998.

[5] It is important to recognise that Hamberger SDP determined, inter alia, two contentious issues in the 2012 Decision:

1. The appropriate method of random drug testing should be through oral swab testing; and

2. The blood alcohol concentration cut-off level for all employees should be 0.05mg/100ml, except for those employees engaged in high-risk activities whose cut-off level should be 0.02mg/100ml.

The central focus in the present case was on two main matters objected to by the Unions and sought by Endeavour as to the efficacy of:

1. a 0.0mg/100ml blood alcohol concentration for all employees; and

2. the introduction of random urine testing for drug detection on a 50/50 selection basis with oral swab testing.

[6] The Unions’ case may be summarised as follows:

(a) the proposed change is inconsistent with the prior arbitration;

(b) the proposed change includes unreasonable directions in the course of work;

(d) the applicant has not given genuine consideration to alternative proposals put to it by the Consultative Committee (the ‘EECC’).

[7] In accordance with my usual practice, I listed the dispute for conciliation on 5 June 2019. As no agreement could be reached on the terms of the new procedure, I issued directions to the parties and set the matter for hearing on the estimate of five days.

[8] At the hearing, Mr Y Shariff of Counsel appeared with Mr T Sebbens and Ms J Woodroffe (of Ashurst, instructed by Endeavour), and Mr M Gibian of Senior Counsel appeared with Mr A Jacka and Mr D Austin for the CEPU on behalf of the Unions. Permission was granted for the parties to be legally represented, pursuant to s 596 of the Act. Given the complex, specialised and technical nature of the issues to be grappled with in this matter, I am indebted to both Counsel for their thorough preparation, efficient and effective conduct of the proceedings, and their helpful presentation and explanation of the detailed material necessary for me to reach appropriate outcomes in this case.

THE EVIDENCE

[9] The following lay persons provided statements and oral evidence in the proceedings:

• Mr Andrew Pitman, General Manager Safety Human Resources and Environment at Endeavour;

• Ms Janet Ann Drakos, Manager Health Services Injury Management at Endeavour;

• Mr Bradley Currey, Organiser at the CEPU;

• Mr Noel Mahon, Testing Technology at Endeavour and Workplace Union Delegate for the CEPU; and

• Ms Ellen McNally, Faults and Emergency Operator at Endeavour Energy and Workplace Union Delegate for the CEPU.

Annexures

Annexed to this decision as Annexure ‘A’ is a glossary of terms and definitions referred to throughout this Decision and helpfully extracted from the ANZS 4760:2019. Also, for ease of reference, I annex the existing AODP and the proposed AODP as Annexures ‘B’ & ‘C’ respectively.

Statement of Mr Andrew Pitman

[10] As General Manager, Safety Human Resources and Environment since July 2015, Mr Pitman is responsible for health, safety, environmental strategy, management systems and business support. He reports to the Interim CEO, Ms Leanne Pickering.

[11] It was Mr Pitman’s evidence that since the change in the ownership structure in 2017, and the appointment of a new Board, including a Health, Safety and Environment subcommittee, there has been a greater focus on safety and ensuring that risk is better understood and controlled. Mr Pitman said that 80% of employees regularly undertake high-risk work, including:

• high and low voltage live line work;

• working on or near the electrical network;

• operating heavy vehicles;

• working on or near road or railways in active use;

• working at heights of more than two metres;

• working in confined spaces ;

• working remotely or alone; and

• using mobile plant and equipment.

[12] Workers performing such high-risk work places a potential risk of harm to themselves, other workers, customers and the general public. The work requires judgement and decision making. Mr Pitman said that while there are other employees in roles not categorised as high-risk, they also make critical decisions which impact on the safety of others, such as engineers and contact centre employees who maintain data regarding some 20,000 life support customers. Mr Pitman also observed that most of Endeavour’s employees travel to work locations by motor vehicle, sometimes at many different locations in a day. Mr Pitman understood that a common feature of safety incidents involves human factors, including reverse polarity or traffic/vehicle accidents.

[13] Mr Pitman noted that Endeavour has statutory responsibilities under the Work Health and Safety Act 2011 (NSW) to ensure, as far as reasonably practicable, the health and safety of its employees. To this end, Endeavour Energy’s Board Policy 3.0 Work Health and Safety sets out its key responsibilities to be:

(a) overseeing the implementation and effectiveness of the Health and Safety Management System (‘H&SMS’);

(b) reviewing the appropriateness of Work Health and Safety (‘WHS’) risk management and risk monitoring processes and programs as they are developed, implemented and maintained; and

(c) establishing a H&SMS to facilitate compliance with relevant laws and regulations and continuous improvement in the performance of its WHS responsibilities.

[14] Mr Pitman is responsible to the CEO and the Board to ensure the H&SMS is maintained and adequately addresses the risks faced by employees. The Network Fatal Risks Standard identifies fitness to work as requiring a policy which clearly defines maximum levels of drug use and alcohol in employees’ systems, who work on or near the electrical network. This policy is set out in Company Policy 3.0 – Fit for Work. The AODP is a critical control measure in managing fitness for work.

[15] The AODP was first introduced in March 2013 and rolled over for a further (three year) period on 20 March 2018. Mr Pitman said that around April 2018, Ms Janet Drakos, Manager Health Services Injury Management, conducted a review of the 2018 Procedure. After discussions between himself and Ms Drakos, Mr Pitman considered the 2018 Procedure did not adequately address the risks associated with alcohol and drugs in the workplace. This was based on his belief that the business had changed substantially since 2013. Mr Pitman also informed himself of the developments in workplace drug and alcohol testing and other procedures adopted in similar high-risk industries. Ms Drakos’ review had determined that the uniform Blood Alcohol Concentration (‘BAC’) should be 0.00% for all workers across the business, with a ‘blended’ methodology for drug testing; see [5] above, needed to be adopted for the purposes of deterrence and reducing the safety risks posed by workers impaired by drugs or alcohol. Approval was given by the Board’s Subcommittee for consultation to commence with the Endeavour Energy Consultation Committee (‘EECC’) in accordance with the Agreement. An interest-based consultation process commenced with the Union respondents in September 2018 and Mr Pitman was updated of progress by Ms Drakos. A briefing paper dated 12 February 2019, was prepared by Ms Drakos which encompassed the changes as originally proposed.

[16] Mr Pitman approved Ms Drakos’ recommendations subject to further consultation and feedback from all employees, the Health & Safety Committee and the EECC. On 15 February 2019, all employees were informed of the proposed changes and invited to provide feedback over the ensuing month. On 16 April 2019, having briefed the Executive Leadership Team on 8 April 2019, Mr Pitman endorsed Ms Drakos’ proposals for change as set out in Annexure C. He had considered all of the feedback and incorporated some suggested changes where possible.

[17] Mr Pitman claimed the factors he considered when approving a BAC of 0.00% as:

(a) a 0.00% BAC would eliminate the risk of possible impairment by alcohol;

(b) a 0.00% BAC limit would act as a greater deterrent;

(d) under the 2018 Procedure, different BAC limits apply to different Endeavour businesses, and the introduction of a 0.00% BAC limit provides for uniformity across the business;

(e) a 0.00% BAC limit would further remove any inconsistency with job role assessment and increase Endeavour’s productivity by removing the need to assess each job role and risk level;

(f) a uniform BAC limit reduces the potential confusion amongst workers as to which limit applies to whom; and

(g) adopting a zero BAC for detection would promote a consistent approach, and addresses concerns raised by field staff about the different detection levels adopted in the 2018 Procedure, which reinforced a ‘us vs them’ mentality between the office and field staff. It would also effectively eliminate the risk of any impairment of all employees due to alcohol, including employees who may transition between field and office roles.

[18] In respect to the ‘blended’ approach for drug testing, Mr Pitman had considered:

(a) adopting a blended methodology for random drug testing (rather than introducing a drug testing methodology that was completely urine based) is a reconciliation of Endeavour’s interests and the EECC’s interests (reflecting employees and their Unions’ interests);

(b) the approach would bring Endeavour further into line with the approach to alcohol and other drugs testing procedures adopted by employers in similar high-risk industries;

(c) random blended methodology testing would provide an effective deterrent to employees to engage in ‘at risk’ behaviour and the potential for employees being impaired or otherwise affected by alcohol or other drugs at work, including by ensuring that employees do not know which method of testing they will be subject to, providing a more comprehensive deterrence for a broader range of drugs, and making it more difficult for those workers who may attempt to thwart the testing process;

(d) adopting urine testing, as part of the random testing process, and also being used for other types of testing (as noted), was appropriate, having regard to the following:

(i) detection through urine testing can be an indication of misuse and dependency, which can affect long term impairment and fitness for work (including a worker’s risk perception and situational awareness);

(ii) urine testing can detect a wider range of drugs and therefore provides a better deterrent to a wider range of drugs;

(iii) urine testing offers reasonably accurate onsite assessment;

(iv) urine testing would reduce the distressing impact on employees of unnecessary stand-downs due to false non-negative results; and

(v) urine testing would increase productivity and reduce the negative impact on employee morale as the need for managers to manage non-negatives and unnecessary stand down of employees will be reduced.

[19] Mr Pitman believed oral fluid testing had the following shortcomings:

(a) oral fluid technology does not cater for the detection of a number of drugs (or their active ingredients including ecstasy, amphetamine, benzodiazepines, heroin and some opioid pain medications;

(b) cannabis can be difficult to detect in oral fluid testing and has a short detection period, meaning the risk of impairment due to chronic use or hangover is not detected;

(d) urine testing is better at assisting Endeavour to manage the risks associated with chronic and hangover use, due to the longer detection windows.

[20] On 29 April 2019, Mr Pitman sent a company-wide email to all employees about the consultation process addressing two key concerns and identifying the major elements of the procedure. The email reads, inter alia:

• ‘Privacy: If you need to provide a urine sample, you would not be directly observed. The testing collectors are trained to be sensitive to people’s individual situations and would do everything they could to make you feel comfortable and respect your privacy and dignity.

• Storm response: Given there are higher risks in responding to storms, we consider that a BAC of 0.000 is appropriate and we are confident we can continue to manage our storm response without significantly impacting our customer response times.

We’ve carefully considered all feedback from employees, unions and the Health and Safety Committees. In light of our interests and the feedback, the key elements of the proposed procedure, if adopted, will be:

• A 0.000% Breath Alcohol Concentration for all workers

• A blended model for random drug testing (50% oral fluid, 50% urine)

• Onsite urine testing for return to work, post incident, for cause/suspicion and target testing

• Laboratory confirmation tests for all random urine tests and non-negative oral fluid tests

• Screening of all workers reasonably connected to the work at the time of a health and safety incident.’

Statement of Ms Janet Drakos

[21] Ms Drakos has been Manager, Health Services Injury Management since 2013 and reports to Mr Pitman. In her role, Ms Drakos makes recommendations for reform to current policies in injury management, rehabilitation, workplace health and wellbeing management systems. Ms Drakos referred to Endeavour’s Health Management System, the Work Health and Safety Policy and the Fit for Work Policy which includes ensuring appropriate measures to manage fatigue, work capacity and alcohol and drugs which may influence a worker’s fitness for work.

[22] Ms Drakos said that the current AODP was introduced in 2013 and rolled over on 20 March 2018 with little material change. Since 2013, over 4,500 random tests have been conducted using two designated selection methods: the marble method and the ‘Ablebits’ randomiser method. By reference to the test results over the last four years, the decrease in employee numbers, the percentage of tests per number of employees were constant and confirmed positives have remained static, Ms Drakos claimed that the current system is not working as an effective deterrent to risk taking behaviour.

[23] Ms Drakos identified two events since 2013 in which post incident testing was conducted; one had a positive result for cannabis and the other had a negative alcohol result. Ms Drakos believed that post incident testing has not occurred as frequently as Endeavour would prefer. It was proposed that a new education and awareness campaign would be conducted in consultation with all parties.

[24] Ms Drakos believed that a number of issues, including deficiencies have arisen in respect to the 2013 AODP namely:

(a) Employees have complained about false non-negative results from oral fluid test kits, in confirmed negative results, after laboratory testing. In 2019, there were 19 false non-negatives which impacted workers psychologically and emotionally, as well as impacted on Endeavour’s productivity and operations.

(b) The different testing levels for BAC for ‘high-risk’ and other employees, has been a point of contention for field-based employees. The fact that a different standard is applied (namely a 0.02% BAC level for high-risk workers, and a 0.05% BAC level for others) reinforces a ‘them and us’ perception in the field. The distinction also raises some practical issues given that office-based staff also have access to Endeavour vehicles and may also need to attend to storm events.

(c) Oral fluid drug testing devices for onsite screen testing are only required to be ‘fit for purpose’, as compared to being subject to accreditation to a particular standard, like urine drug testing devices. This raises concerns about the reliability and accuracy of such devices.

(d) Ms Drakos understood that the number of drugs capable of being detected by such oral fluid devices is also fewer than for urine testing devices. Each of these matters is concerning, given the importance placed on safety, and the detection of employees who may be impaired or engaged in risky use.

(e) There had been a number of disputes concerning the application of the procedure, including in 2013 when employees who were members of the Electrical Trades Union (‘ETU’) (a branch of the CEPU) refused to participate in testing. There were also two disputes with the employees described below:

(i) in 2014, an employee refused to take a drug test; and separately

(ii) also in 2014, an employee refused to take a test requested by the Medical Review Officer (‘MRO’) to be used as a diagnostic test to support medical diagnosis and future treatment.

(f) Ms Drakos also understood that more recently in 2018, employees working on a worksite of another company had indicated that they would refuse to participate in urine screening if selected, despite it being a health and safety requirement of that company’s worksite. However, the Endeavour workers were not selected for drug testing at that time.

(g) Ms Drakos raised concerns that the 2018 Procedure in its current form is limiting qualified medical practitioners from appropriately identifying, diagnosing and recommending treatment to support drug related medical conditions.

[25] As a result, Ms Drakos conducted a review of the 2013 Procedure over three months from April to July 2018. Ms Drakos took into account a number of legislative and other changes affecting Endeavour’s business and the current environment. These were earlier identified by Mr Pitman and included an alliance formed between Endeavour and UGL Limited (‘UGL’) which meant three different BAC cut-off levels; 0.02% and 0.05% for Endeavour employees, and 0.00% for UGL employees where UGL and Endeavour employees are working alongside each other. Ms Drakos said the risks to Endeavour include the following:

(a) Endeavour Energy was formerly part of Networks NSW, a NSW Government entity together with Essential Energy and Ausgrid. Networks NSW was disbanded in June 2017. At that time, the poles and wires assets within the Endeavour franchise area were leased to a consortium. As a result, the employees within the Endeavour business became employed by Endeavour Energy Network Management Pty Ltd. A new Board of Directors was also established for the business.

(b) Endeavour established a ‘ring fenced business’ called Ausconnex Management Pty Limited (‘Ausconnex’) which competes for unregulated work in the electrical contracting market. Ausconnex operates in the unregulated market undertaking a variety of electrical contracting work, such as asset relocations and supplying network equipment.

(c) Ausconnex has seconded to it employees of Endeavour Energy. These employees of Endeavour, when working within the Ausconnex business, work on worksites of other persons conducting a business or undertaking (‘PCBU’), and are required to comply with the health and safety arrangements applicable to that worksite, with some of these businesses being required to comply with the Code for Tendering and Performance of Building Work 2016 (the ‘Building Code’) which provides for a ‘zero tolerance’ level for drugs subject to detectable levels. Ausconnex is competing for non-regulated work against a number of the companies and as WHS standards are a critical selection criterion, it is imperative that Endeavour is able to meet the standards of its competitors.

[26] Ms Drakos believed that the current methodology requiring a minimum of two days and an employee’s stand down to confirm a non-negative result, adversely impacts on an employee’s psychological state and Endeavour’s productivity when employees are stood down. Ms Drakos had serious concerns as to the impairment by drugs or alcohol on affected employees and their ability to perform high-risk tasks safely. As part of her review, Ms Drakos undertook a benchmarking exercise in a range of high-risk industries. She believed her inquires reveal other high-risk companies had adopted more stringent BAC and drug testing standards. Ms Drakos and Mr Pitman had agreed on her review and recommendations and then embarked on an interest-based consultation with the relevant Unions and the EECC. Mr Drakos said Endeavour’s key interests were:

(i) ‘Ensuring that all employees get home safely and perform at their best every day. For any alcohol and other drugs procedure that is in place, this means we want to ensure that it is an appropriate measure for Endeavour Energy to meet its obligations under the WHS Act in terms for eliminating or controlling the risk of alcohol and other drugs use by workers as far as reasonably practicable;

(ii) Eliminating the impact that unnecessary non-negative stand downs can have on a worker’s mental health, as well as on productivity through lost time;

(iii) Responding to changes in the high-risk environment in which Endeavour Energy works, that any alcohol and other drugs procedure that is in place treats everyone the same so as to eliminate the confusion around the different levels that apply in different situations;

(iv) Focusing on supportive health outcomes and care for Endeavour Energy’s employees; and

(v) Any alcohol and other drugs procedure that is in place to be in plain-English and easy to understand and apply’.

Meetings and presentations took place on 4 September, 20 September, 27 September, 11 October, 25 October and 11 November 2018.

[27] Ms Drakos then set out the consultation process with feedback sought from employees after she had provided her recommendation to Mr Pitman and his email to all staff on 15 February 2019; see: [16] above. The consultation period from 15 February to 15 March 2019 included:

• 80 email responses from employees;

• A FAQ document; and

• 19 consultation meetings with local health and safety committees throughout NSW and them updating the FAQ document.

Ms Drakos recommended to Mr Pitman for a new AODP on 16 April 2019, which included a common 0.00% BAC limit and a ‘blended’ oral and urine testing regime for drugs.

[28] Ms Drakos said that from the feedback the following was proposed as to how the procedure would be implemented:

(a) continuing to adopt a supportive approach which aims to help workers ensure that they are fit and healthy to perform their job, and provides them with additional support where appropriate to do that;

(b) confirming that where an employee is required to provide a urine sample they will not be observed providing that sample;

(d) committing to increased post incident testing;

(e) modifying the non-negative notification form to ensure there is post testing follow up with the worker from their preferred point of contact (health services or their manager) and providing additional information for further advice, assistance and information for workers in relation to alcohol or drug issues they may be experiencing;

(f) providing for alcohol self-testing during a transition period;

(g) confirming that Endeavour would roll out further alcohol and drug awareness and training sessions for staff prior to the implementation of the proposed AODP;

(h) providing further clarification on the proposed AODP around the process that applies where an employee is on prescription or over the counter medication;

(i) confirming that all urine samples will be sent to a National Association of Testing Authorities (‘NATA’) accredited laboratory for synthetic drug screening after concerns were raised that only sending non-negatives would be limiting; and

(j) confirming that the testing collectors are trained to be sensitive to an individual’s particular situation and will do everything they can to make the person feel comfortable and manage the situation with respect to the persons’ dignity and privacy.

Ms Drakos referred to Mr Pitman’s all staff email of 29 April 2019 which dealt with the policies key features and addressed three specific employee concerns – see: Mr Pitman’s email at [20] above.

Statement of Mr Bradley Currey

[29] Mr Currey has been involved with industrial matters at the Company for the last 11 years, including negotiations for the Endeavour agreements, and more recently in discussions concerning the AODP with other Unions and delegates. Mr Currey set out the discussions for the proposed AODP which began on 14 August 2018 and which Endeavour sought to have conducted using ‘interest based’ bargaining. At a meeting on 4 September 2018, Ms Murison stated that Endeavour’s reasons for a review of the AODP were concerns in relation to:

(a) the number of false positives;

(b) the degradation of samples during transportation to the laboratory leading to false positives;

(d) the impact on productivity during these three days;

(e) costs; and

(f) the emotional wellbeing of Endeavour’s employees during this three-day period while stood down pending the laboratory confirmation result.

At this meeting Mr Currey asked if Endeavour wanted to utilise urine testing, and was told ‘no’.

[30] At another meeting on 20 September 2018, Ms Drakos responded to requests for certain information from the data over the past years. She had provided:

(a) A breakdown of that data in relation to the total number of confirmed positive results. There were 25 confirmed positive results out of 2329 tests.

(b) A breakdown of how many of the confirmed BAC and drugs from those total results. Ms Drakos said the BAC was 8 and drugs was 17.

(d) There were 67 false positives out of the 2329 number of tests carried out. There were 38 employees stood down, 13 employees put on suitable duties and 16 employees were deemed fit for work.

The meeting also discussed a non-controversial proposal to redraft the procedure in ‘plain English’ and a new section about the use of synthetic drugs. Mr Currey again asked about urine testing and Ms Murison said this was not the reason for the review.

[31] Further meetings were held involving Endeavour’s testing agent, The Drug Detection Agency (‘TDDA’). Concerns about transporting tests to the laboratory were addressed by confirmatory tests conducted in Sydney (one to one and a half days) rather than Melbourne with a turnaround of three days. In a meeting on 11 October 2018, Mr Currey expressed the view that the data for the last four years did not establish a problem resulting in the procedure not working. Mr Currey said it was not until another meeting on 25 October 2019 that Ms Murison confirmed that the Company wanted to introduce partial, not full, urine testing, with maybe a small percentage by urine.

[32] Mr Currey believed that Endeavour changed its concerns and interests to suit their own agenda and disregarded the views advocated by employees and Unions. At another meeting on 11 November 2018, the Unions proposed:

(a) maintaining the current mode of random drug testing (swab) and BAC levels;

(b) running a re-education program of the procedure to all staff so there would be no confusion of the BAC levels if the employee is working in a high-risk position (0.02%) or low-risk position (0.05%);

(c) increasing the frequency of the random testing by conducting the test out in the field onsite, not just in the depots;

(d) conducting mandatory testing for drugs and alcohol of all employees on the site where an incident/accident occurred, including contractors;

(e) improving treatment/follow-up of an employee who returns a ‘non-negative’ and is stood down awaiting the results of the laboratory confirmation results;

(f) having the samples sent to a laboratory that can do the 48-hour turnaround on confirmation of sample (as suggested by TDDA); and

(g) introducing urine testing post a confirmed positive laboratory result as a part of the fitness for work/return to work and pursuing urine target testing thereafter.

[33] At a meeting on 14 February 2019, Endeavour rejected the Unions’ proposals and Ms Murison said they would be proceeding with a new procedure which included:

(a) 0.00% BAC for all employees;

(b) 50% of random tests being urine tests;

(d) 50% of random tests being swab testing; and

(e) if a ‘non-negative’ result occurred from an onsite random swab test, then a urine test would be undertaken and tested.

[34] Where urine testing for synthetic drugs had a five-day turnaround, Ms Drakos said that in these circumstances, an employee would not be stood down. Mr Currey said that as a result, the Unions advised they would be activating the DSP in the Agreement for a breach of the consultation process. Various emails were exchanged between the parties in February/March 2019 and the Unions proposed a joint application to the Commission for a ‘New Approaches’ process, pursuant to s 576(2)(aa) of the Act. Endeavour responded and claimed such a course was premature as consultation was continuing and no decision had been made.

[35] The parties remained in dispute. Another meeting was held on 9 March 2019, in which Endeavour outlined the consultation procedure and its methodology for arriving at its position on the review. The Unions rejected the position as ‘unreasonable’, ‘unjustifiable’ and ‘without evidence’. Mr Currey said that between May and June 2019 (noting that the first Commission conference was held on 5 June 2019) he had a number of conversations with Ms Murison and suggested alternate outcomes, including:

(a) making the BAC level 0.02% for all staff, not just staff identified as working in high-risk position. That way it would be a uniform limit for all staff;

(b) urine testing post a confirmed positive oral swab laboratory result as part of the fitness for work/return to work;

(c) if the employee provides a negative urine sample, urine target testing for a period after the employee returns to work; and

(d) urine testing for pre-employment testing.

These proposals were all rejected by Endeavour.

[36] Mr Currey rejected Ms Drakos’ argument as to changes in the workplace. There has been no material change to the work performed by employees; no changes in relation to safety, safe work procedures, how the network is repaired and maintained in accordance with obligations on all staff. Mr Currey said that Endeavour employees have always worked with contractors and on worksites of other businesses. Employees are well-aware of their health and safety obligations when working on any site.

[37] Mr Currey referred to the outcome of the 2012 case and the enquiry by Mr T Love, Federal Safety Commissioner in May 2013 to identify and determine high and low-risk roles (the ‘Love Report’). As a result, 700 employees are defined as high-risk and have 0.02% BAC level applied. Such work includes:

• all electrical tasks and work, including testing and isolation;

• all field/site work;

• all switch yards and switch rooms;

• all workshop areas;

• all stores;

• operation of all heavy vehicles; and

• workers authorising and/or actuating isolations in a remote location (i.e. control rooms).

Mr Currey described the difficulties of having a 0.00% BAC for all field staff including those on standby and how Endeavour would ensure senior managers making decisions at short notice, were at 0.00%.

[38] Mr Currey believed that Endeavour has not provided any objective evidence that would warrant a change from random oral testing. There has only been two examples of post incident testing and the three day stand down of employees would not arise if the turnaround time was reduced, as is now proposed. In response to Ms Drakos’ statement, Mr Currey said her claim of 4500 tests since 2013 was inconsistent with what she told the Unions as being 2329 tests. Further:

• not all field staff commence work at the depot or at the same time, meaning some field staff would be missed;

• there was no evidence, nor had he been told of employees complaining about false negative results;

• he had not heard of any complaints from field staff about the differing BAC levels applying to high-risk and low-risk employees. In any event, the Union’s proposal for a 0.02% BAC cut-off would eliminate this alleged concern.

• Hamberger SDP did not alter his 2012 decision in respect to the performance and accreditation of oral testing in another case filed by Endeavour in late 2013; see: Endeavour Energy [2014] FWC 198.

• the issues involving Mr Dishburn and Mr Prosser were misrepresented by Ms Drakos;

• he was not aware of any employee in 2018 working on the worksite of another company refusing to participate in a random urine test;

• if an employee is directed to provide a urine sample by an Independent Medical Expert this is already provided for in the current AODP;

• the Unions were not made aware of Ms Drakos’ review conducted in April 2018;

• there was no evidence of risky drinking or drug taking in regional areas. Such a suggestion was insulting, unsubstantiated and unreasonable;

• the community statistics are of limited value as they are not reflective of the actual data over the past four years;

• Ms Drakos’ benchmarking exercise actually reflects consistency between Endeavour’s current AODP and other electrical distribution companies;

• Endeavour’s approach to interest-based bargaining was inconsistent with Cl 5.2 of the 2017 Agreement and the negotiations for the Agreement facilitated by Cribb C;

• the Unions were never provided with the 80 emails received from employees as ‘feedback’ on the proposed AODP. The CEPU conducted its own survey which found:

(i) of the employees surveyed, 123 of the employees were field based and 50 were office-based;

(ii) 105 employees surveyed said they were on 0.02% BAC; 41 said they were 0.00% BAC; 14 said they were 0.05% BAC; and 13 employees didn’t know the BAC cut-off; and

(iii) 159 employees do not support the proposed changes.

[39] In response to Mr Pitman’s statements, Mr Currey said:

• Mr Pitman had not attended any of the consultation meetings;

• the ‘Love Report’ identified high-risk roles including contractors;

• there was no evidence of any incident involving ‘human factors’ as being related to alcohol or drug taking;

• there have been no substantial changes in the business obligations in respect to health and safety;

• Mr Pitman (and Ms Drakos) were not qualified to draw conclusions about oral fluid testing. Mr Pitman seemed to rely only on conversations with Ms Drakos; and

• the changes Endeavour proposes were not evidence based and there were no changes which justified or demonstrated the current procedure had failed, or was inadequate.

Statement of Mr Noel Mahon

[40] Mr Mahon commenced employment with Endeavour, or its predecessor entities, as an apprentice electrical/fitter mechanic in 1977. He holds an Electrical Contractors License and an Electrical Supervisors License. In 1995 he completed an Associate Diploma in Electrical Engineering. He has been a workplace union delegate for approximately 20 years and has been on various consultative and OH&S committees and involved in negotiations for the 2012 and 2017 Agreements. Mr Mahon described the numerous licenses he holds and the work he performs as a Testing Technologist.

[41] Mr Mahon, with other delegates and officials, was directly involved in the consultation meetings with management over the proposed AODP. These discussions included Endeavour’s concerns with oral testing having a high number of non-negatives due to sample degrading, minimum stand downs of three days, the effect on productivity and individual personal impacts. Endeavour had said there had been 67 false positives with 38 employees stood down. Mr Mahon had raised a personal concern that he had been required to provide three samples, without an explanation. He had also raised privacy concerns (My Health Record) and identity theft with the storage of medical records. Mr Mahon recalled each of the meetings when TDDA attended and discussed emerging drug use trends. TDDA had stated that it was difficult to test for benzodiazepines. There was a discussion about sample transportation concerns (three days to Melbourne) and degradation issues. It was understood a 24-hour turnaround would apply if samples were sent to a Sydney laboratory.

[42] At the meeting of 11 October 2018, the employees’ interests were set out as:

(a) Testing for risk of impairment not lifestyle choices.

(b) Preventative/Supportive approach rather than punitive.

(d) Maintaining employee’s dignity and respect – preventing humiliation.

(e) Preserving employee confidentiality regarding health record and testing records.

(f) More onsite testing than depot-based – more of a deterrent.

(g) Interest in self-testing for alcohol.

(h) Interest in having some flexibility with the AODP.

(i) Education around levels and application – particularly if a different site and levels that will apply.

(j) Clarity/information around medication including cold and flu tablets – flagging risks.

[43] Mr Mahon believed the Company then shifted its focus to synthetic and designer drugs. The 11 November 2018 meeting discussed the impact on standby employees of a 0.00% BAC, who would have to rule themselves out of a call out, if they had one drink. Mr Mahon believed that in these circumstances Endeavour might not have enough people to provide an adequate response during storm events. Mr Currey had mentioned the immediate impairment effect from oral testing, the turnaround time being reduced and if there was a problem, Endeavour could increase the frequency of testing.

[44] Mr Mahon described the meetings in early 2019 where Endeavour set out its position and the Unions responded that the existing procedures adequately address and control the risks of alcohol and drugs in the workplace. In Mr Mahon’s experience, if anything was to be improved, it was the level and extent of targeted testing.

[45] Mr Mahon addressed Ms Drakos’ statement by commenting that her claim the procedure was not working effectively was not supported by the evidence, or can be otherwise addressed; for example, the sample turnaround can be shortened; no work has been impacted on by stand-downs; the other electrical supply companies have similar AODPs to Endeavour making widespread coordination in natural disasters easier; and the energy distributors are exempt from the Building Code.

[46] Mr Mahon disputed Ms Drakos distinguishing immediate impairment from longitudinal assessment of fitness for work. They are two different things and must be separated. One involves testing while the other concerns an employees’ general physical and mental health. Linking them under the guise of safety should be viewed with scepticism. Mr Mahon criticised Endeavour for not following the steps in an ‘interest based’ bargaining process and for failing to provide timely information. The Unions had not been provided with the ~80 feedback emails from employees and Mr Mahon described the presentation meetings in various locations as poorly conducted, providing little opportunity for discussion and questions.

[47] Mr Mahon noted that the BAC road traffic cut-offs were 0.02% for heavy vehicles and passenger vehicles and 0.05% for personal vehicles. These are in line with the current BAC levels at Endeavour and other power utilities. Mr Mahon further believed that:

• the new oral fluid testing standard AS4760-2019 has an expanded range of testing for impairment and gives an almost instantaneous result;

• Endeavour employees prefer oral fluid testing for convenience and the avoidance of embarrassment;

• existing deterrents are adequate with random, causal, suspicion and post-incident testing; and

• the buffer solution will address sample transport degradation.

[48] Mr Mahon said that he could not recall Mr Pitman attending any of the consultation meetings. He said Mr Pitman’s views about deterrence is a demonstration that the existing AODP is working. Mr Mahon criticised Mr Pitman’s reliance on a so called ‘interest based’ bargaining process for the same reasons as he criticised Ms Drakos’ claims for the reasons for the proposed changes. Mr Mahon repeated his earlier comments in respect to Mr Pitman’s statement. He noted that he was not aware of any ‘them and us’ mentality between field and office staff with different BAC cut-off levels.

Statement of Ms Ellen McNally

[49] Ms McNally is a 24 hour/7-day shift worker whose role is to deal with phone and internet inquiries from all external customers, including the public and retailers. She has worked for Endeavour (and Integral) since 2002. She is a CEPU delegate and member of the EECC. In July 2019, she was elected to the CEPU NSW Executive. She attended all of the meetings with management between 4 September 2018 and 4 April 2019 in respect to the proposed AODP.

[50] Ms McNally responded to Ms Drakos’ statement as follows:

(a) There has been little post incident testing since 2013. This is the Company’s choice. As the person responsible for reports of near misses or incidents, including vehicle collisions, in the last two years, she had not seen ‘yes’ to a question about BAC testing, even when managers have witnessed vehicle incidents. She and other delegates support more post incident testing, as it may lead to greater awareness and deterrence.

(b) As to impacts on workers of being stood down, she gave an example of a member who was stood down for a non-negative result related to anti-depression medication who had not been contacted or followed up by the Company while stood down. It is the Company’s choice to have a 3-day turnaround for confirmatory testing, and in meetings involving the TDDA, it was confirmed that a 24-hour turnaround was possible in Sydney, rather than sending samples to Melbourne.

(c) The Unions had proposed a 0.02% BAC cut-off for all employees to counter the alleged ‘them and us’ mentality. Endeavour had rejected the suggestion. Ms McNally is concerned that 0.00% BAC for all employees will result in employees being overloaded with work, when major incidents require call outs and employees will be unavailable if they fear being detected for any trace of alcohol.

(d) Oral testing devices are subject to minimum Australian standards and are therefore not only required to be ‘fit for purpose’.

(e) She was unaware of any employee who had refused urine testing at a non-Endeavour location, such as performing work in rail corridors.

(f) She was concerned that an employee’s private medical records may not be secure, and employees may not wish the Company knowing about medications used for certain conditions. It is an unreasonable intrusion into an employee’s private life.

(g) Ms Drakos seemed more concerned that not enough employees were being caught by testing processes, rather than the testing being inadequate. The Unions had suggested random testing of drugs and alcohol at depots. This was rejected by Endeavour.

(h) She said that there has been little change in the business since 2013. The role of the business and the work performed by staff has not changed with the change in business ownership; the demographics of the staff has not changed; contractors have always been used and network boundaries have not altered.

(i) The ‘interest based’ consultation (more ‘roadshows’ than consultation) had commenced after the proposed changes had been put to the management and the Board. There was little difference from the first proposal in April 2018 to the final proposal in April 2019, save for minor tweaking. Further, she felt the Company’s interests were constantly changing. For example, despite initially denying a plan to introduce a zero BAC level and urine testing, both of these matters were a major feature of the proposal.

(j) It was never made clear how Ms Drakos and Mr Pitman came to the view that the existing AODP was not adequately addressing risks associated with alcohol and drugs in the workplace.

[51] As to Mr Pitman’s statement, Ms McNally said to her knowledge, he had never attended any of the meetings to discuss the AODP and had not attended any EECC meetings to review the procedure.

[52] Ms McNally referred to the Union’s survey of members and believed it highlighted how employees feel about the proposal and their perception of the lack of consultation by the Company. Ms McNally had also spoken to many female employees who had expressed specific concerns as to urine testing.

[53] Ms McNally used her own example of never having been randomly tested for alcohol or drugs since commencing employment in 2002, to demonstrate Endeavour is not adequately applying the AODP.

EVIDENCE IN REPLY

Reply Statement of Andrew Pitman

[54] In his reply statement, Mr Pitman responded to the Union’s case that the activities of Endeavour have remained unchanged since 2013. He claimed that there has been a ‘lift in focus on safety’ under the Company’s new Board and Management structure, particularly in respect to changed expectations of risk management.

[55] Mr Pitman responded to Mr Currey’s statement concerning the Building Code and emphasised that while exempt, Endeavour (and Ausconnex) employees are still required to work with building industry companies and contractors where the Building Code applies, and comply with their onsite alcohol and other drugs procedures. As a result of Mr Currey’s criticism for not providing copies of Incident Cause Analysis Method (‘ICAM’) investigations in respect to ‘human factors’ relating to alcohol and drugs, Mr Pitman offered the following:

(a) ‘Approximately 50% are classified as “FR1.1 Exposure to unintended discharge of electricity”; and

(b) 30% are classified as “FR1.4 inadvertent contact with plant and vehicles”.

Mr Pitman claimed that ‘human factors’ (Individual/Team actions) may involve behavioural influences such as fatigue, stress, or effects of alcohol or drugs. Reducing these risks will also serve as a deterrent when addressing potential future incidents.

[56] In respect to criticisms of Ms Drakos’ benchmarking exercise against other energy providers and high-risk industries, the table shows that electricity distribution is becoming increasingly less aligned with the standards in other high-risk industries. He also understood that Essential Energy is soon to introduce a BAC cut-off of 0.00% and onsite urine testing as an option for follow up, post incident and cause testing.

[57] Mr Pitman also stressed that the fact that alcohol and drugs have been detected in the workforce is not indicative of the optimal functioning of the current AODP, particularly as some drugs are not currently detectable and a ‘blended’ approach would enhance the deterrent effect and reduce the risk of impairment.

[58] In response to Ms McNally’s concerns about employees not coming to work if a level above 0.00% BAC may result in dismissal, Mr Pitman pointed out that a breach of the AODP will be considered on a ‘case by case’ basis and will not automatically result in dismissal. Mr Pitman said that working in rail corridors is not confined. Work in these areas is not voluntary or optional.

Reply statement of Ms Drakos

[59] In a reply statement, Ms Drakos disputed Mr Currey’s evidence that in the meeting on 4 September 2018, when he asked if Endeavour was planning to introduce urine testing, the answer was no. She recalled Ms Murison had said there were areas for improvement and Endeavour was ‘exploring all possible options, combinations and types of testing that are available, including urine testing’.

[60] Ms Drakos said that synthetic drugs was discussed at the EECC on 20 September 2018 where it was agreed that TDDA would give a presentation about workplace drug testing programs. At the subsequent meeting, synthetic drugs and some of the limitations with testing methods for these drugs, was discussed at length. A table on the subject was requested and emailed to the Unions and delegates on 7 November 2018. It was advised that urine testing was being considered from an increased deterrence perspective because oral testing did not detect a broad range of drugs.

[61] As to the discussion around turnaround times for results, TDDA commenced using an accredited Sydney laboratory in May 2019. However, it is unable to screen for benzodiazepines. This means non-negative samples for benzodiazepines are required to be sent to Melbourne or Brisbane for testing. Even so, Ms Drakos had reviewed the turnaround times for eight non-negative results sent to a Sydney laboratory: two were greater than three days, three were three days and three were less than three days. This proved shorter turnaround times in Sydney were ‘not assured’.

[62] Ms Drakos said that Mr Currey was incorrect when he stated that approximately 700 employees were in high-risk positions. The Love Report disclosed approximately 1100 employees (or 80% of staff) were designated high-risk. Ms Drakos also denied that random testing is only ever conducted at depots. Infield testing does occur and of those conducted infield in the past few years, the following percentages of overall results were identified:

• 2016 – 13.8%

• 2017 – 18%

• 2018 – 29%

• 2019 – 27.4%

[63] Ms Drakos claimed that in her role she was aware of a number of individuals who made complaints about the effect on them of false non-negative results. Four confidential examples (1 in 2018 and 3 in 2019) were cited. Ms Drakos also claimed to be aware from refresher training and safety sessions, that field staff have raised concerns with her as the differences in BAC cut-off levels, have sought the same BAC levels and raised an ‘us vs them’ mentality. Ms Drakos also claimed she had been informed that a workgroup at Narellan had indicated they may refuse to participate in urine testing.

[64] In response to Mr Mahon’s statement, Ms Drakos said that the cut-off levels in the new oral fluid standard are unlikely to be able to be verified for a few years given the current testing device technology. Waiting for such devices would cause an undue delay in implementing an appropriate AODP. Ms Drakos explained that Endeavour’s concerns about degradation of samples, was not about the buffer solution, but that a different oral sample is used onsite from that sent for confirmatory testing.

[65] Ms Drakos added that employees are entitled to have a representative with them when they undertake an onsite test and any discussions which may follow. Employees are not interviewed when they return a non-negative result. A worker may be referred to the MRO to determine fitness for work. These discussions are private and confidential.

[66] Ms Drakos said that Endeavour regards pre-employment testing as an ineffective deterrent because the prospective employee is aware they will be tested and when it will occur. Further, given the average service of Endeavour employees is 15.5 years, pre-employment screening is not reflective of future alcohol or drug use.

[67] As to privacy concerns with medical records, Ms Drakos observed that:

• Endeavour and TDDA are bound by the Privacy Act 1988 (the ‘Privacy Act’) and their own internal processes for the management of personal information;

• all personal medical information is managed in a secure case management system only accessible by Health Services staff;

• MRO information is managed and stored by the MRO in accordance with the Privacy Act; and

• Endeavour is only privy to fitness for work information and treatment recommendations.

[68] Ms Drakos said that where there was low attendance at local Health and Safety Committee meetings, she had asked for further liaison, consultation and feedback.

[69] In response to Ms McNally’s statement, Ms Drakos reiterated the primary objective of the proposed AODP and that by utilising both testing methods, the deterrent factor would be enhanced, as there is a greater range of drugs able to be detected. She said that post-incident testing was reactive, rather than preventative (random testing) and suspicion testing was problematic as workers were reluctant to challenge co-workers unless they are certain. In six years, there had only been two such cases. Ms Drakos disputed Ms McNally’s claim that the oral fluid testing devices used by TDDA exceed the Australian standard. They are verified to the standard by an independent third party. Ms Drakos believed that wastewater testing would be impractical and not specific.

[70] Ms Drakos insisted that ‘interest based’ bargaining had been undertaken by Endeavour. On 11 November 2018, four options were provided for drug onsite testing and three for alcohol testing. The Unions had expressly requested Endeavour’s preferred options and they were indicated and explained.

[71] Ms Drakos rejected McNally’s concerns as to the particular effect on workers of urine testing. She said the testing vans and facilities are accredited and fully equipped to meet the requirements of AS/NZS4308:2008 – the Procedure for collection and detection drugs in urine. These ensure privacy and appropriate disposal facilities, not unlike sample collections at a doctor’s rooms or pathology centre.

Oral evidence

Mr Andrew Pitman

[72] In cross examination, Mr Pitman further detailed his history of working in industrial relations for various electricity supply utilities since 2008, up to and after the partial privatisation of Endeavour in 2017. He referred to the terms of the transfer of employees, which included an employment guarantee up to the end of June 2020 and the continuation of the existing wages and conditions under the relevant Act through a new Enterprise Agreement. He had not been involved in the policy formulation and Commission proceedings between 2012-2014.

[73] Mr Pitman agreed that Endeavour’s desire to change the AODP could have been raised during negotiations for the 2017 Agreement. However, the preferred approach was to deal with the matter outside of enterprise bargaining. Mr Pitman accepted Mr Currey’s evidence that operationally, the activities of employees have remained ‘largely unchanged’ since before the partial privatisation. The ‘substantial changes’ Mr Pitman was referring to related to the business ownership structure and the lift in the focus on safety since then. He also mentioned the introduction of Network Fatal Risk Control Standards (‘NFRCS’) in 2015. He confirmed that most policy or procedure documents set a review date (typically 2-3 years) when they are republished or reviewed. However, changes can occur at any time, depending on changes in priorities, unforeseen incidents or new information comes to light. The Group Health & Safety Policy is approved by the Board while the NFRCS, being a specific subset of the Policy, is approved at CEO level. The current NFRCS recommended by him, was approved in July 2018 with a review in July 2021.

[74] Mr Pitman said the ‘Fitness to work’ policy introduced in 2016, requiring ‘a clearly defined maximum level of drugs and alcohol in the system…’ is the basis for the AODPs in 2013 and 2018. This is to be reviewed by the end of 2019, but to his knowledge the review has not commenced. It includes the following reference:

• ‘The company will educate an empower workers in fulfilling their responsibilities of presenting themselves fit for work.; and

• The company will establish systems for identifying, managing and monitoring fatigue, alcohol and drug risks.’

[75] In respect to the existing AODP, Mr Pitman said he was responsible for recommending to the CEO that the procedure be published on 20 March 2018 and reviewed in March 2021. Mr Pitman said a substantive review had been initiated before March 2018, but as it appeared such a review would not be complete in the timeframe, the existing procedure was published to ensure continuity and currency. Mr Pitman agreed the more substantive review was that commenced by Ms Drakos in April 2018. He conceded that a review was commenced almost immediately after the procedure was extended for review until 2021. He accepted a shorter review period could have been adopted and that this review could have been aligned with the Board’s general safety policy review and replacement policy due in early 2020. Mr Pitman conceded neither the employees nor Unions were told of Ms Drakos’ substantive review at the time. However, the means of consultation included direct advice to employees through online communications seeking their feedback and advice and consultation in the Consultative Committee.

[76] It was Mr Pitman’s evidence that he had a number of discussions with Ms Drakos from April 2018 and had formed his views as to the need for policy change after discussions with her. He had accepted her recommendations based on the advice and information Ms Drakos had provided. This was presented to the Board’s subcommittee on 7 August 2018. Formal approval was not sought from the Committee, but it is normal practice to take such a policy or procedure to the Committee. Consultation with staff commenced after this meeting, but he was not involved until Ms Drakos’ formal recommendation in February 2019. Mr Pitman said there were some changes to the proposed procedure throughout February and April 2019, but not material to the main issues, which remained. Mr Pitman confirmed that the Consultative Committee process is purely consultative. There was a reference to the parties ‘interests’ as discussed by the Committee, but no recommendations. Mr Pitman confirmed that one of the minor changes proposed was for Endeavour to have the right to send any sample, whether urine or oral, or negative or non-negative onsite, to a laboratory for confirmatory testing. He understood this arose from a discussion about detection of synthetic drugs.

[77] As to the operational work undertaken by Endeavour employees, Mr Pitman agreed it had not changed in recent years. He and Ms Drakos relied on a report form 2012 known as the Love Report. He confirmed that his comments in respect to work other than high-risk work, are not new features of the work performed in those roles. He affirmed that the more prescriptive statutory and regulatory requirements for the electricity industry are not new, or substantially changed. It was more a case of work practice and policy changes. One recent example of change (not yet wholly completed) is a review of all live low voltage work practices. Mr Pitman agreed that this change is to bring low voltage work up to comparable standards for high-risk work (which the employees are already doing).

[78] Mr Pitman was asked about another reason for the change being the level of detection for drugs and alcohol under the existing procedure, including for post incident detection. However, Mr Pitman conceded he was only aware of one positive post incident test outcome in 6 years, being on 20 July 2016. This incident did not result in any change in the AODP at the time.

[79] Mr Pitman agreed that since the introduction of the 2013 AODP, over 4500 random tests have been conducted on employees and contractors and the number of tests and positive results were:

YEAR	NO OF TESTS	BREACHES
2014	1013	0
2015	1088	4
2016	750	4
2017	750	5
2018	728	3
2019	443	6

(Noting employee numbers in 2014 were 2564 and in 2019 were 1802.)

Mr Pitman accepted that at the time of Ms Drakos’ review position, breaches were going down.

[80] Mr Pitman was asked about his comment that human factors are a common contributory factor in safety incidents. He based this on a report in 2019 – ‘Fatal risks’ – which disclosed that 80% of safety incidents related to ‘Exposure to unintended discharge of electricity’ 49%, and ‘Inadvertent contact with plant and vehicles’ 30%. 85% of these incidents involved at least one contributing factor related to Individual/Team actions. Mr Pitman could not say how many incidents this report had examined.

[81] Mr Pitman acknowledged that according to the existing procedure, post-incident and cause/suspicion requires alcohol/drug testing, yet since 2016 there has been only two such post incident tests. When asked if these figures suggested a real drug and alcohol problem in the workforce, Mr Pitman replied, ‘maybe not’.

[82] Mr Pitman’s cross examination then moved to his comment about the need for policy change based on the information about drug use in the community, arising from the Australian Government National Drug Strategy Household Survey 2016 (the ‘2016 Household Survey’) data which had been provided to him by Ms Drakos. He recalled looking at other information dealing with increased use of ‘ice’ and synthetic drugs in the community. Mr Pitman was unaware that the 2016 Household Survey found:

• The proportion of the population consuming alcohol daily had declined between 2013-2016.

• The proportion of people exceeding lifetime risk guidelines had also declined.

• There was no change in the use of illicit drugs between 2013-2016.

• There was a significant decline in the use of specific drugs between 2013-2016, including methamphetamines down from 2.1% to 1.4%.

• Use of synthetic cannabinoids had gone down from 1.2% to 0.3%.

Mr Pitman could not say whether this evidence demonstrated an increase in the use of synthetic drugs. He had gained his knowledge from discussion with Ms Drakos, but could not say where she had obtained the information. Mr Pitman was not aware that the use of ‘ice’ as a proportion of methamphetamine users had reduced.

[83] Mr Pitman was referred to the chart of information as to other energy and other industries as to their alcohol and drug policies. It is as follows:

COMPANY NAME	INDUSTRY	BAC CUT-OFF HIGH-RISK	BAC CUT-OFF LOW-RISK	DRUG TESTING METHODOLOGY
Endeavour Energy	Energy	0.02	0.05	Oral Fluid
Ausgrid	Energy	0.02	0.02	Oral Fluid
Essential Energy	Energy	0.02	0.05	Oral Fluid
TransGrid	Energy	0.02	0.02	Oral Fluid
Queensland Energy	Energy	0.00	0.05	Oral Fluid
Roads and Maritime Service	Roads	0.02	0.02	Oral Fluid
Rail (Sydney Trains)	Rail	0.00	0.00	Urine
BHP	Multiple	0.00	0.00	Urine – pre-employment; oral onsite
Lend Lease	Multiple	0.00	0.00	Blended
UGL	Multiple	0.00	0.00	Dual modality – required standard of organisation

Mr Pitman was unable to say what exemptions applied to some of the energy entities when they engage contractors. He understood when Endeavour employees work on Lendlease sites, they are required to comply with Lendlease’s drug and alcohol policies.

[84] As to recent changes to the Essential Energy Alcohol and Drugs Policy, Mr Pitman was unaware of what procedure had been adopted, but understood it included a BAC cut-off of zero, with urine testing for follow up post incident testing, but not for random testing.

[85] Mr Pitman had relied on discussions he had with Ms Drakos about potential impairment levels between 0.00% and 0.02%. He could not point to any research or studies on the issue, but recalled that Endeavour had called expert evidence in the 2012 case which it relied on to accept 0.02% as the appropriate level for the workforce. Mr Pitman acknowledged that he had no evidence that 0.00% BAC would have a deterrent effect. He had made an assumption it would do so.

[86] As to uniformity, Mr Pitman agreed that uniformity would also be achieved if 0.02% was applied across the workforce. He could not recall if Ms Drakos had told him that the Unions, during consultation, had proposed 0.02% BAC for the entire workforce. Mr Pitman could not identify the productivity savings of having to assess risk levels for roles with different cut-off levels. He believed there might have been some confusion amongst workers moving from one role to another with different cut-off levels. Nevertheless, Endeavour does its best to clearly communicate with its workers about any policy or procedure, including the AODP, and does it effectively. He conceded that no worker had told him of any confusion as to high and low-risk work and Ms Drakos did not report to him of any concerns put to her.

[87] Mr Pitman confirmed that Endeavour trains all employees on the AODP and what is required of them to conform with the procedure. Endeavour cannot guarantee every individual is not confused about the differentiation of high and low-risk work. As to a suggestion of an ‘us and them’ mentality, Mr Pitman said no one had complained to him about the distinction between field based an office-based employees vis a vis, 0.02% and 0.05%, but some of his operational colleagues had mentioned it. Mr Pitman agreed there would be very many other differences applying to different groups of workers.

[88] Mr Pitman acknowledged that the ‘blended’ 50/50 oral and urine testing proposal did not arise from the consultation process – it was Ms Drakos’ original review proposal. Mr Pitman had not relied on any research as to the greater deterrent effects a ‘blended’ approach would have. He had assumed a stronger testing regime would act as a greater deterrent.

[89] Based on Ms Drakos’ recommendations, Mr Pitman believed that oral testing does not detect ‘ecstasy, amphetamines or opioids’, whereas urine testing will. Urine testing would also improve productivity by reducing unnecessary distress for employees due to false non-negative results. Mr Pitman accepted that the number of false results were about 12-16 a year, although Ms Drakos understood that there were only 30 such stand downs over 6 years. She agreed that not all positive onsite test results mean an automatic stand down, as advice is sought from the MRO.

[90] Mr Pitman was asked about his understanding of the differences in detection windows between oral and urine testing’, He did not know what drugs, other than cannabis, have a longer detection window when urine testing is used. In respect to cannabis, Mr Pitman understood detection with oral testing is four to six hours after consumption, and four to six days with urine testing. He was unaware of whether there is a substantially longer period if a person is a habitual user. He did not know if detection after 4-6 days would indicate any level of impairment. This was not a concern he was aware of. Mr Pitman could not be sure of any level of impairment outside the window of 4-6 days, but still believed there was a risk of impairment within that window.

[91] Mr Pitman was referred to the 2018 AODP which highlights counselling and rehabilitation as preferred methods for managing procedure breaches, and disciplinary action is a last resort. He could not say if any employee had been dismissed for a positive drug or alcohol test. The procedure provides for a first and final warning, verbal counselling or a warning for a first breach. A further breach in a 12-month period might result in disciplinary action, including dismissal. By contrast, Mr Pitman was taken to the proposed AODP which states that any breach of the procedure would be considered serious misconduct, which may result in disciplinary action. He agreed the procedure provides no guidelines as to what disciplinary action would be contemplated. Any final decision would be made by the Head of People and Culture, who reports to him.

[92] Mr Pitman said he had not considered, and had no view what disciplinary action would be appropriate, where an employee had consumed cannabis some days prior to a positive urine test. He had not considered this circumstance in formulating the proposed procedure. Mr Pitman did not know why the existing reference to a first breach attracting a warning was removed from the proposed procedure.

[93] In re-examination, Mr Pitman said that Endeavour’s policies were kept the same throughout the enterprise bargaining process so as to ensure an ability to vary policies after consultation with staff outside bargaining. He estimated that there were some 30 policies in this category. Mr Pitman believed it was best practice to review policies from time to time to improve them.

[94] Mr Pitman said that as a result of an invitation to staff in February 2019 to comment on the proposed AODP, about 80 emails were received from a total cohort of between 1,800-1,900 employees. Mr Pitman was asked to comment of the Union’s survey of employees from which 173 responses were received. He noted that 41 responded that they thought their BAC level was zero.

[95] Mr Pitman confirmed that he had considered all of the information and memos Ms Drakos had provided and which are referred to in the evidence. Mr Pitman said he and Ms Drakos had a ‘lot of discussion’ about the drugs that can be detected by urine testing and their impact on impairment.

[96] In questions from me, Mr Pitman could not explain why existing references to home-based testing and a transitional period were not included in the proposed AODP, but Endeavour had given undertakings that the transitional support would continue. Mr Pitman agreed there was no reason why the undertaking could not be included in the new AODP.

Ms Drakos

[97] In cross examination, Ms Drakos described the review and approval process Endeavour undertakes when making major changes to health and safety policies. She said that in respect to the minor word changes in the rollover of the AODP in March 2018, she had made the recommendation, it went to the Governance Risk and Compliance Group, then to Mr Pitman and then to the CEO. This was to satisfy the compulsory three-year review cycle. An earlier review had been undertaken in 2015 and approved with no substantial change, like the 2018 rollover.

[98] Ms Drakos agreed that soon after the March 2018 rollover, she commenced a further review. She acknowledged that she had not informed the employees or the Unions of her review and completed the review in July 2018, at which time she and Mr Pitman agreed on the need for the major changes to be made. Both the 0.00% BAC level and the ‘blended’ testing approach were discussed at this time and ultimately taken to the 7 August 2018 Executive Health, Safety and Environmental Committee for consultation. The Unions were informed on 4 September 2018.

[99] In further questioning, Ms Drakos confirmed the issues of concern and need for changes which informed her recommendations. She added that some drugs, including synthetic drugs, could not be accurately tested using oral fluid methods. However, she agreed synthetic drugs could not be tested by either onsite oral or urine tests.

[100] Ms Drakos agreed that the nature of the work performed by Endeavour employees had not changed. She understood that Endeavour is now subject to the Building Code when interacting with other PCBUs such as Lendlease on their sites (there was a difference between Mr Pitman and Ms Drakos as to whether Endeavour’s deregulated business, Ausconnex, was exempt from the Code. Ms Drakos ultimately did not disagree with Mr Pitman that Ausconnex was exempt). Ms Drakos agreed that Endeavour was not seeking to align all its health and safety policies with all of the PCBU companies where its employees work. Nor was she seeking to align all of Endeavour’s health and safety policies with UGL. Ms Drakos accepted that the leasing of the business in 2017 did not change the risk profile of Endeavour, or the tasks performed by its employees. Ms Drakos acknowledged that Endeavour’s geographic coverage had not changed since 2013. She said the average age of employees in the business is 46 years, 33% of the workforce are between 40-49 years and the majority of the workforce are males aged 25-60 years. She did not consider issues such as work status, educational or socioeconomic backgrounds of employees when making her recommendations.

[101] Ms Drakos compared these figures with the 2016 Household Survey and noted that ‘males in their 40s were the most likely age group to drink alcohol at risky levels.’ She agreed there had been a 2% downward trend from 2016. Mr Gibian pointed out other statistics in the survey Ms Drakos did not consider, which disclosed:

• The age group 18-24 is the most likely group to engage in high levels of alcohol consumption in a single occasion;

• People in their late teens and early twenties are more likely to consume 11 or more standard drinks at least monthly than other age groups.

[102] Ms Drakos was referred to her statement in which she said:

‘Operations in geographically remote areas where risky drinking and cannabis and methamphetamine use is statistically higher than major cities.’

For this, she had relied on the Survey’s conclusion that:

‘People living in remote and very remote areas are more likely to smoke, drink at risky levels and use cannabis and methamphetamines, but less likely to use illicit drugs.’

When asked about the ABS geographic definition of ‘remote’ and ‘very remote’, and shown a map, Ms Drakos acknowledged Endeavour does not operate in those regions (although may verge on ‘remote’). She had not satisfied herself that the definitions corresponded to Endeavour’s business coverage.

[103] Ms Drakos further agreed that no breakdown was undertaken of the age profile, location etc. in respect to the employees who had positive drug and alcohol tests since 2013. Ms Drakos said that risk behaviour was evident in different parts of the business and cited the Blue Mountains as one such area. However, she could not provide any details of the number of positive tests in the Blue Mountains area and she had not provided any such information to Mr Pitman or the Executive Health and Safety Committee.

[104] Ms Drakos was taken to her view that one of the reasons for her review was the number of tests remaining ‘relatively static’. This was despite the facts that the number of positive tests decreased between 2017 and 2018 and there had only ever been one post incident positive test.

[105] Another concern was the productivity impact and psychological effect on employees who have a false positive result. Ms Drakos accepted that not every person in this position is stood down. Mr Currey’s estimate of around 38 in 6 years sounded about right. Mr Drakos could not recall a discussion with Mr Currey on 4 February 2019 about the five-day turnaround for a laboratory urine testing following a positive oral test. She agreed no employee had spoken directly to her about the psychological effect on them when stood down.

[106] Ms Drakos claimed that there has been a number of disputes concerning the application of the procedure. She cited incidents involving two employees, one of whom related to a referral to the MRO; the other concerned an employee with a prescribed medication in his system. Both disputes were resolved following referral to, and recommendations by the Commission. Ms Drakos acknowledged that despite some management concerns, there was no refusal of any employee to undertake a urine test.

[107] As to consultation, Ms Drakos agreed that at the first meeting on 4 September 2018, Mr Currey had questioned as to whether Endeavour intended to introduce random urine testing. Ms Murison had said that Endeavour wished to identify and evaluate what it could do better, the areas of improvement within alcohol and other drugs process and how it could positively contribute to a safer workplace. However, all options, combinations and types of testing were being considered. She repeated this at the 20 September 2018 meeting. There was a suggestion to await the review of the Australian Standard in respect to fluid testing. Endeavour’s service provider, TDDA, had advised that an oral fluid cut-off using a verified device would ‘most likely only be available in a few years.’ Ms Drakos believed that waiting would cause undue delay in implementing an appropriate alcohol and other drugs procedure. The new standard was finalised in March 2019. Ms Drakos understood some progress has been made in getting a device to meet the Standards, being verified and accredited. She agreed that the new procedure may not be able to be complied with in terms of testing to the Australian Standard.

[313] Mr Gibian argued that if there had been a large number of positive tests confirmed or evidence regarding a particular section of the workforce or issues regarding a particular drug, there may be a case for change; similarly, no such evidence was advanced here.

[314] Mr Gibian submitted that with regard to the introduction of a 0.00% BAC, the applicant placed heavy reliance on the fact that Essential Energy was introducing a new AODP with a 0.00% BAC and the Unions were not challenging the introduction of that procedure. The Commission would give no weight to this matter. Mr Gibian noted that there was no evidence before the Commission that explained why Essential Energy had proposed to introduce a new 0.00% BAC level for all staff, the basis on which it was proposed, or the reasons why the ETU had decided not to challenge its introduction. By way of analogy, Mr Gibian explained that it was unlikely Endeavour would accept that because workers at Essential Energy had received a 10% pay rise, it necessarily followed that workers at Endeavour should also receive a 10% pay rise. Mr Gibian put that the use of a lower 0.00% BAC to detect workers with a hangover was more appropriately dealt with through fatigue management, and that a worker may still be significantly impaired by a hangover, but present to work with a 0.00% BAC.

[315] On the issue of random drug testing methodology, Mr Gibian said that the expert evidence made clear that the greatest difference between oral fluid and urine testing was in the detection of cannabis and benzodiazepines. He noted that during his cross examination of Professor Christie, it was said that urine testing would ‘certainly’ not detect cannabis consumption in the first hour or two after consumption. Mr Gibian addressed concerns regarding the ability of oral fluid testing to detect cannabis consumed in food. He referred to the evidence of Professor Christie that 99% of cannabis is smoked and that the only positive post incident test at Endeavour Energy involved a 2016 motor vehicle incident where the worker indicated he had consumed cannabis in food, after receiving a positive oral fluid test. Mr Gibian argued that the scientific evidence regarding testing methodologies had not seriously changed between the decision of Hamberger SDP and the present, but to the extent that it had, it was in favour of the greater reliability and usefulness of oral fluid testing, as a result of the new Australian standard.

[316] Mr Gibian directed the Commission’s attention to clause 34.1.6 and clause 5.2.1 of the Agreement which require that dispute resolution and consultation be undertaken using the ‘interest based’ approach. He made the point that Ms Drakos had conducted a review, expressed a desire for change and received approval for that change from Mr Pitman before any consultation had even taken place. Further, he noted that a series of meetings took place before the Company disclosed it wished to introduce random urine testing, despite the fact that it had decided to do so before the commencement of the process. Mr Gibian said that no attempts were made during the ‘interest based’ consultation to seriously accommodate any of the employee interests put forward by the Unions.

CONSIDERATION

[317] It is obvious from the parties’ respective cases and the remedy Endeavour proposes in this dispute application, that there are essentially two principle issues to be decided; namely:

1. Whether the BAC cut-off level should be 0.00% for all groups of the Endeavour workforce; and

2. Whether Endeavour should introduce a ‘blended’ onsite random alcohol and drug screen testing regime.

[318] There are some associated issues with the proposed AODP about which I will refer to later; but it seems to me that the main focus of the very helpful expert evidence in this case was on the above two issues. To the extent there were differences in emphasis and approach in the expert evidence, it tended to focus on the issues surrounding the testing for drugs, other than alcohol. This is perhaps understandable given the longer history of alcohol influences on human behaviour and consequences for alcohol consumption affecting the workplace and employee performance.

[319] There continues to be emerging issues in respect to other drug detection as to testing reliability, accuracy and effectiveness, including more recent concerns with the increased use of synthetic drugs. In my view, there will continue to be advances and improvements on testing methods which will warrant ongoing reviews of employers’ AODPs to meet contemporary standards and community expectations.

[320] I do not intend to comment on the Union claims as to Endeavour’s alleged failure to properly engage in the consultation process, specifically that it was not based on the principles of ‘interest based’ bargaining, as required by the Agreement’s DSP; suffice to observe that the fact the ‘interest based’ bargaining approach was unsuccessful, appears to rest primarily on the firm positions adopted by both parties as to what each side sought from the bargaining; although it must be acknowledged that the Unions had a more flexible approach to bargaining, particularly in respect to a common BAC cut-off across the workforce. It is inescapable from Ms Drakos’ first recommendation to Mr Pitman, and while information was widely distributed and feedback sought, that the fundamentals of Endeavour’s position did not shift, with any suggestions from the Unions rejected, or adopted only if they did not detract from the fundamentals.

[321] On the other hand, the Unions’ steadfast rejection of ‘blended’ urine/oral random testing for drugs was more about philosophical objections, and firm Union policy, than practical common-sense solutions, based on the evidence. Moreover, the Unions’ position is inherently inconsistent, as it accepts urine testing for post-incident pre-employment testing and confirmatory testing.

[322] Lest there be any doubt, the Commission unreservedly accepts that Endeavour has the right to review and update its policies, including its AODP, to reflect contemporary industrial and/or community standards and expectations, new research and improvements in technology. However, as a model litigant and as the applicant in a dispute application under an agreement, what comes with that right, is an obligation and onus to explain and justify what circumstances have changed which warrant such major alterations to a procedure which has only recently been re-endorsed and published after comparatively recent and prolonged litigation on the same subject matter.

[323] Indeed, Endeavour has pursued its case in this dispute through the evidence of Mr Pitman and Ms Drakos almost entirely in an effort to persuade the Commission such a departure from the 2018 AODP has been brought about by changed circumstances. Even Endeavour’s own expert, Mr Simpson, who regularly reviews selected Company AODPs, agreed that when doing so, one should review and assess:

• the results of recent testing;

• the testing facilities;

• the effectiveness of education programs; and

• changes in workplace operations, including the type of work and skills involved.

[324] That being said, I found the quality and selective analysis of Ms Drakos’ review in recommending to Mr Pitman the changes to the AODP, to be less than satisfactory, and in some respects, simply wrong. While I do not suggest Ms Drakos was intending to be deliberately misleading, her source material was selectively used and did not represent, let alone justify, her conclusions that changes in general and population statistics were related to either Endeavour’s workforce profile, or its business activities, and that other changed circumstances warranted and justified her review.

[325] I intend to provide a number of examples:

• Ms Drakos relied on the 2016 Household Survey to support her view that Endeavour’s workforce profile (the majority of which are males aged 25-69 years), were males in their 40’s who were the most likely age group to drink alcohol at risky levels, yet the Survey actually revealed a downward trend of 2%.

• Seemingly important, but brushed over, was the further finding that persons in their late teens and early 20’s, are more likely to consume 11 or more standard drinks at least monthly and the age group 18-24 were most likely to engage in high level single occasion risks.

• Ms Drakos’ conclusions as to the incidence of risky drinking, cannabis and methamphetamine use in remote areas, or very remote areas, as a reason for changing the AODP was simply wrong. Endeavour does not operate in these defined areas. This was a sloppy and unhelpful analysis. Moreover, 2016 general community statistics are not consistent with the actual dates over the last four years in respect to Endeavour’s employees.

• Ms Drakos raised the identification of a risk problem in the Blue Mountains area, but had not included that view, or the basis for it, in any of the material put to Mr Pitman or the Executive Health and Safety Committee.

• Most significantly of all, in my opinion, Ms Drakos had not undertaken any analysis of the age profile, role, location, educational or economic background of any of the Endeavour employees who had tested positive in recent years, to properly establish any correlation with the actual incidence of the small number of results and her assumptions and opinions based on alleged changes in the business and workforce profile.

• Endeavour claimed that one of the changes which prompted the review was the change in ownership of the business in 2017. Given that both Mr Pitman and Ms Drakos agreed that the work performed by Endeavour employees had not changed since 2013 (and probably for years before that), it is ‘clutching at straws’ to see how the change of business ownership were grounds for a change in the AODP. This was a weak and flimsy argument for which no evidence was provided by Endeavour, save for the generalised view that the new management had taken a more focused emphasis on workplace safety. One might state the obvious – all employers should ensure a strong and ongoing emphasis on workplace safety.

• Ms Drakos claimed that another of the reasons for her review was the productivity impact on the business when employees are required to be stood down for a minimum of three days, if a screening test returns a false negative result. Putting aside that Ms Drakos could not actually quantify the productivity impact, and that Mr Currey rejected Ms Drakos’ numbers of employees in this position (of ~60 false negatives, only around 38 employees were stood down), it must be said that it is Endeavour’s procedure which has these time limits. There would be nothing to stop Endeavour from ‘fast tracking’ these tests, if the productivity detriment was a real concern. Indeed, not all employees in this situation are stood down (30 over 6 years). In any event, given the numbers involved and the number of total employees, such a productivity impact, at best, could only be regarded as miniscule.

• As to the suggestion that Endeavour is concerned at the psychological impact on employees who are stood down and awaiting confirmation, or otherwise, of a random drug or alcohol test, there was no evidence to support this assumption – medical or otherwise – from any affected employees. Endeavour chose not to bring evidence from any employee to justify this assumption. Again, the stand down decision is entirely a matter for Endeavour’s management. If this was a genuine concern, there would be nothing to prevent Endeavour from redeploying such employees to non-safety critical roles, while awaiting confirmatory results.

• Endeavour has always worked with contractors on worksites of other businesses. There was no evidence of any confusion or difficulties which Endeavour had experienced in this area of alleged concern. Moreover, the Building Industry Code issue was not even correctly understood by Mr Pitman or Ms Drakos.

• I am also troubled by the removal of certain processes for dealing with, inter alia, a first breach of the procedure by a warning or counselling and its replacement by the words:

‘Any breach, other than one involving prescription or over the counter medication used consistent with direction would be serious misconduct, by definition’.

• Ms Drakos conceded these changes were not referred to in any of the presentations to Unions during the consultation. Her explanation was that the new wording was to provide flexibility to manage each instance on a ‘case by case’ basis. The proposal came from Ms Murison in People and Culture. In my view, this was a serious matter that had been slipped out of the procedure without any explanation, let alone consultation. It is my intention to restore the original procedure’s wording in this respect. My other concerns about omissions in the procedure, went to the transition period and self-testing which are also deleted from the proposal. There is little within the procedure as to how it is to be implemented. Ms Drakos’ cross examination on these omissions is telling. At PN2147-2149, she said:

‘It's not in the procedure, but that doesn't mean that we won't continue what we're already doing to support our employees.

…

Under the Responsibilities, we've continued to reinforce, through our health services team, around them providing education and training on the health issues and effects of alcohol and other drugs, as well as the case management of incidents, including providing assistance and support for workers seeking help to resolve alcohol or drug issues.

…

We've … identified here that breaches of this procedure will be considered serious and the matter will be referred to People and Culture for possible disciplinary action.’

• Despite Endeavour’s presentations to Unions, I am concerned that there is a less than subtle change in focus from support and assistance to employees with drug and alcohol problems, to one which is focused on disciplinary outcomes. Nevertheless, I accept and welcome Mr Shariff’s undertaking that if the Commission recommended it, the omissions I have referred to will be included in the revised AODP.

• Ms Drakos also justified her procedure change recommendation on a claim that there was a culture of ‘them and us’ between employees who are subject to two different BAC cut-off levels. When queried, Ms Drakos (as did Mr Pitman) conceded that no employee had ever directly raised such concerns with her. She had merely heard that certain unnamed Managers had talked about it. There was no evidence brought from any employee, or group of employees, about this perceived unhealthy culture. Moreover, basing such an opinion on second hand hearsay (even if it was fact) is not acceptable. This justification can be rejected.

• Similarly, Ms Drakos asserted, with no evidence, that there was confusion amongst employees about which BAC cut-offs applied to them and confusion could arise if this were to become ‘blurred’ as to whether it constituted high-risk or low-risk work. I note the Unions’ survey had a small number of responders who believed that a 0.00% BAC cut-off applied across the board. Of course, there will likely be some crossover between employees who may sometimes work in low-risk and high-risk locations interchangeably, other conditions and obligations would apply in any event. In my view, this claim does not constitute a basis for change. Any confusion (if it arises) is better addressed through improved education, information dissemination and training.

[326] Without knowing the full details of the suite of health and safety policies, particularly going to the drug and alcohol policies of other electricity generators and supply companies, I do not consider that simply identifying the BAC cut-off levels of these companies, is a productive or helpful exercise. This must be a fortiori, when comparing these cut-off levels to other ‘high-risk’ industries, as my own experience in the mining industry’s approach to drugs and alcohol policies will attest. Even by doing so, none of the other four energy companies has a common 0.00% BAC high/low-risk cut-off.

[327] Endeavour’s current approach, on its own evidence, does not appear to be markedly out of step, or inconsistent with the cut-off levels at its comparable companies. I would add, to the extent that reliance is had on the policies of other unrelated high-risk industries, this might be an interesting academic exercise. However, care should be exercised to ensure that comparisons are truly ‘apples with apples’. There may be a range of individual and discrete factors which underpin the policies in other industries; including, inter alia, the relevant statutory and regulatory regimes in which they operate, historic experience, the relative ‘high-risk’ of one industry compared to another, and the sophistication and experience of the parties in the workplace.

[328] In any event, it is not at all apparent what the purpose of such comparisons are. It certainly has little, or nothing to do with productivity. If it is suggested it has something to do with competitiveness in the market, I do not imagine that any prospective customer would give priority to, let alone understand, the BAC cut-off levels for high and low-risk work at Endeavour when deciding to switch service providers.

[329] Finally, I also found particularly troubling, Mr Pitman’s exclusive reliance on what Ms Drakos told him and recommended to him, which I have earlier found to be less than satisfactory. On his own evidence, Mr Pitman did not conduct his own independent inquiries, seek advice or challenge Ms Drakos’ review or reasons for it. His evidence went not much further than acceptance of his and Ms Drakos’ own assumptions.

[330] For these reasons, in my assessment, Endeavour has not established any reasonable basis for changing its current BAC cut-off levels to 0.00% for the entire workforce. This is particularly so, given that all Australian State and Territory Parliaments (presumably, in recognition of prevailing community and scientific standards), have considered it appropriate to allow a licenced driver in charge of a vehicle (a dangerous weapon) to record a BAC reading of below 0.05%, without incurring any penalty. To my mind, there is little to differentiate a motor vehicle driver involved with multiple and simultaneous tasks to a low-risk Endeavour employee performing multiple and simultaneous tasks.

[331] To the extent there is a difference between high-risk and low-risk work, I am prepared to accept that a BAC cut-off of 0.02% for designated high-risk work, will unlikely have an impact on the performance of work and/or the safety of such workers and their colleagues. This appears to be consistent with the BAC cut-off (0.02%) for drivers of dangerous or heavy goods and public vehicles in New South Wales. Moreover, without demonstrating what material changes have occurred since Endeavour relied on the same expert evidence and carefully advocated the current BAC cut-off levels in the 2012-2014 Commission proceedings, there is no reason, let alone a compelling one, to depart from the existing cut-offs, so soon after they were introduced.

‘Blended’ urine/oral testing

[332] In carefully evaluating the expert evidence, I have nevertheless been persuaded that there is a lacuna in the current drug testing regime at Endeavour, in respect to the detection of cannabis and other drugs (cannabis being the most commonly used) in an employee’s system within a range of reasonably likely impairment periods. Such detection cannot be reliably addressed by the exclusive use of oral testing. Urine testing can detect recent cannabis use within the immediate euphoric period (one to two hours) and for a considerable period up to six hours after consumption. It will also detect chronic or long time use over an extended period.

[333] In addition, I accept that oral fluid testing is unlikely to detect oral consumption of cannabis, as it metabolises rapidly following oral ingestion. I also accept that urine testing, particularly by comparing a series of tests, will assist in identifying the nature of the cannabis use of the individual; be it infrequent (casual), frequent or chronic (regular). This goes to the appropriate support, counselling, rehabilitation and assistance mechanisms Endeavour should apply in addressing an individual’s particular cannabis use.

[334] Both Drs Robertson and Lewis agree that once a drug has left the blood, it will not likely be detected in oral fluid, but may remain detectable in urine. This is the very reason why urine testing should be utilised, at least on a ‘blended’ basis. It will detect possible chronic use which is likely to impact impairment and identify persons for whom specific and specialised support, counselling and rehabilitation are needed. This lacuna can be filled by the introduction of urine testing as proposed by Endeavour, on a 50/50 ‘blended’ approach.

[335] Based on the expert evidence consensus, I am also convinced that the 50/50 ‘blended’ approach will have a useful and material impact on one of Endeavour’s policy imperatives of acting as a deterrent to employees knowingly consuming cannabis on an irregular basis, when there is the unlikelihood of being detected with the current oral screening cut-off of 15ug/L. Dr Robertson (expert for the Unions) agreed a 50/50 blended approach would enhance deterrence and assist in risk management. Further, I note that a ‘blended’ approach was never put as an option in the 2012 case before Hamberger SDP (or since). I also accept that urine testing is also likely to produce a lower number of false negative and false positive readings than oral testing.

[336] On the other hand, all the experts agree that urine testing does not detect very recent smoking/ingestion of cannabis (THC). Critics of urine testing highlight this as a major deficiency of this method. However, in my view, this criticism is largely illusory when one considers:

(a) It is difficult to imagine that an employee (unless a chronic cannabis user who would be detected eventually) would use cannabis on a casual, occasional basis, within an hour of preparing for work, travelling to work, commencing work, and then being required to undertake a random drug test.

(b) Given that detection is likely between 1-2 hours after consumption, the timetable for detection is likely to produce a positive result, particularly as the levels of concentration are much greater in that initial period and gradually reduces between 2-6 hours after use.

(c) If the employee is a chronic, regular cannabis user, he/she will almost certainly be detected by a urine test, irrespective of the time periods between 1-6 hours, or for some days, after consumption.

(d) The objective of urine testing, as the experts all agree, is not to demonstrate recent use, but the ingestion of a prohibited substance in some hours, days, or even weeks, after ingestion. In other words, an employee could easily manipulate their frequent consumption of cannabis by working out the unlikelihood of being detected by oral testing, in the post-6-hour period from consumption. Such a person may go undetected as a regular user of cannabis for which there is a real risk to their own health and safety, and that of others.

[337] I do not find helpful, arguments at the margins, of the shortcomings with the respective urine/oral testing devices. In any event, the methods of collection are becoming increasingly more sophisticated and will continue to be so, given the recent requirement in the Standard for testing devices to be performance tested and verified. It seems to me that it would be the height of folly for an employer to commence, or continue to use unverified devices, making the employer non-compliant with the Standard and therefore likely to be subject to justifiable criticism and challenge by employees tested by such devices.

[338] I also accept that a person’s means to tamper with, or evade detection are greater with oral testing, than urine testing. Mouth rinsing, drinking or eating up to 30 minutes before a test (Professor Christie) are obviously easier methods of evasion, than substitution of urine samples in a random drug testing regime. That said, one should never underestimate an individual’s inventiveness to find ways to avoid or mask detection. Experienced collecting agencies are likely to be alert to any suspicious circumstances in this respect.

[339] It is also evident that urine testing is more likely to routinely detect benzodiazepines, than oral testing, because their concentration is so low as to not be detected by existing onsite screening devices. It is no answer that laboratory testing will detect certain benzodiazepines in saliva. This is an illogical proposition, as the sample will never get to the laboratory, if the onsite screening test likely returns a negative result, even though the drug might still be present.

[340] All of the experts agree that both methods of testing have their specific purposes, benefits and shortcomings and can be used to complement each other. Even Dr Robertson accepted that using both methods on a random basis would be an appropriate means to deter, or to avoid the risk of detection. In my opinion, no one testing method is demonstrably preferable to the other.

[341] Given these observations, it seems to me to make perfect sense to have a combination of random testing which will service as both a deterrent and a means to identify and manage risks, particularly by picking up chronic drug users where counselling and support should be a major priority for Endeavour. If one accepts (as Dr Robertson opined) that cannabis and methamphetamines are the two most commonly detected illegal drugs in safety critical worksites, and both oral and urine testing can detect these drugs in different scenarios, the question arises as to what method best meets the procedure objectives of acting as both a deterrent and ensuring the safety of the workforce and the individual. From the evidence, that seems to me, at the very least, to be oral/urine testing in combination.

[342] Using both testing methods will have significant advantages in achieving and extending the common objectives of a contemporary, relevant, appropriate and fair AODP to deal with drug use in the workplace.

CONCLUSION

[343] The parties are directed to confer in order to redraft the proposed AODP in accordance with my findings and conclusions in this decision; most notably that the proposed AODP should include:

1. Retention of the existing BAC cut-off levels for random alcohol testing of 0.02% for designated high-risk roles and 0.05% for all other employees of Endeavour;

2. Random testing for drugs by a ‘blended’ (random) method of urine and oral fluid testing, with an approximately 50/50 use of both random methods;

3. Confirmatory drug testing be by urine testing, following a non-negative oral fluid test;

4. For cause, post-incident suspicion, return to work and pre-employment testing for drugs, urine testing will be utilised;

5. The inclusion of those matters omitted from the proposed AODP and agreed to be included by Endeavour, particularly going to issues of:

• Counselling and rehabilitation as preferred methods for managing breaches of the procedure;

• Inclusion of the existing references (5, 8) to first and subsequent breaches of the procedures; and

• Self-testing.

[344] This dispute is otherwise resolved.

DEPUTY PRESIDENT

Appearances:

Mr Y Shariff of Counsel, Mr T Sebbens, Partner, Ashurst and Ms J Woodroffe, Senior Associate, Ashurst, for Endeavour Energy.

Mr M Gibian of Senior Counsel, Mr A Jacka, Senior Industrial Officer, Electrical Trades Union of Australia (NSW Branch) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and Mr D Austin, Research Officer Electrical Trades Union of Australia (NSW Branch) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, for the Unions.

Hearing details:

2019.

Sydney:

29 October
30 October
31 October
1 November
11 November.

Printed by authority of the Commonwealth Government Printer

ANNEXURE ‘A’

ANNEXURE ‘B’

ANNEXURE ‘C’

Endeavour Energy Network Management Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2020] FWC 1325

23 APRIL 2020

DECISION