The Maritime Union of Australia v DP World Brisbane Pty Ltd

[2014] FWC 1523

[2014] FWC 1523[Note: An appeal pursuant to s.604 (C2014/3693) was lodged against this decision and the order arising from this decision - refer to Full Bench decisions dated 9 April 2014 [[2014] FWC 2404] and 6 November 2014 [[2014] FWCFB 7889] and [[2014] FWCFB 7890] respectively for results of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Maritime Union of Australia
v
DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited
(C2012/1405)

DEPUTY PRESIDENT BOOTH SYDNEY, 10 MARCH 2014

Dispute resolution - Alcohol and Other Drugs Policy - whether sufficient consultation - whether jurisdiction for orders sought - whether policy unjust or unreasonable - role of intervener

[1] In early 2012, The Maritime Union of Australia (the MUA) and DP World Brisbane Pty Ltd, DP World (Fremantle) Limited, DP World Melbourne Limited and DP World Sydney Limited (DP World) successfully concluded negotiations for enterprise agreements. 1 The enterprise agreements cover stevedoring employees at each of the Australian ports at which DP World operates container terminal facilities, namely Fisherman Islands, Brisbane in Queensland; Fremantle in Western Australia; West Swanston, Melbourne in Victoria and Port Botany, Sydney in NSW. The enterprise agreements were approved by Fair Work Australia, as it then was, between 4 May 2012 and 6 June 2012. All have a nominal expiry date of 30 June 2014. I will refer to them collectively as the Agreements. The Agreements are divided into Part A which is identical across the four ports and Part B which contains provisions that are specific to the particular port.

[2] During these negotiations the MUA and DP World agreed to insert a new term concerning testing for alcohol and other drugs into the provision in Part A of the Agreements that deals with safety. The context included DP World’s intention to implement a new national policy concerning alcohol and other drugs designed to replace the previous site by site policies. This intention was realised from September 2012 with the progressive implementation of a new national policy entitled DP World Alcohol and Other Drugs Policy (the Policy) across each of its sites. The Policy applies to employees at all levels, contractors (including owner truck drivers and truck divers employed by transport companies) and other visitors.

[3] The term appearing in Part A of the Agreements at Clause 17 Safety reads as follows:

“17.8 Drug and Alcohol testing

The parties acknowledge that the Company’s drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

[4] The implementation of this term of the Agreements became the subject of a dispute between the MUA and DP World and on 11 November 2012 the MUA applied to the Fair Work Commission (the Commission) to deal with it. Notwithstanding a number of conciliation conferences before me, as well as direct discussions between the MUA and DP World, the dispute was not resolved and the MUA sought arbitration of the matters in dispute.

[5] DP World questioned the jurisdiction of the Commission to arbitrate to resolve the dispute and this matter was itself the subject of a decision of the Commission in April 2013. I found that jurisdiction existed to deal with the dispute by way of arbitration. 2

[6] An application by the Transport Workers’ Union of Australia (the TWU) to intervene was granted. 3

[7] I heard oral argument and witness evidence on 9-12 September 2013 and received written submissions from the MUA, TWU and DP World, the last submission being received on 29 November 2013. Permission to appear was given to Mr Burns for the MUA, Mr O’Callaghan for the TWU and Mr Perry for DP World. Evidence was given as follows:

For the MUA:

• Dr Robertson, Forensic Consultant, Independent Forensic Consulting



• Mr Smith, Assistant National Secretary, MUA

For the TWU:

• Mr Stone, an owner driver for Owens Transport



• Mr Dixon, a truck driver employed by Australian Container Freight Services Pty Ltd



• Mr Pirc, an official of the TWU



• Mr Nightingale, an official of the TWU



• Mr Aird, Assistant State Secretary of the TWU

For DP World:

• Mr Jena, General Manager Melbourne Terminal, DP World Melbourne Limited



• Mr Hulme, Director and General Manager, DP World Brisbane Pty Ltd



• Mr Holland, Director and General Manager, DP World (Fremantle) Limited



• Professor Christie, Professor of Pharmacology, University of Sydney, Senior Principal Research Fellow, National Health and Medical Research Council, Associate Dean Research, Sydney Medical School



• Ms Blomfield, National Manager Employee Relations, DP World Australia



• Mr Bilston, Operations Manager, Port Botany Terminal, DP World Sydney Limited



• Ms Samimi, Human Resources Manager, DP World Sydney Limited.

[8] It is apparent to me from these proceedings that the MUA, the TWU and DP World all agree that the safety of employees and others who frequent the sites at which DP World operates container terminal facilities is of paramount importance and policies and practices should be directed at maintaining a safe place of work and commerce. In particular each party to these proceedings asserts their desire that no person enter the sites at which DP World operates container terminal facilities impaired by the use of alcohol and/or other drugs so as to present a risk to the safety of themselves and others around them. This is the overriding principle that I have been guided by in my deliberations. However, the devil is, as always, in the detail. The MUA and the TWU take issue with DP World concerning how this principle should be achieved. They question whether elements of the Policy serve this purpose and express concern about the collateral impact of measures designed to achieve this outcome on their members’ autonomy in their private lives and on their job security.

Contentions

[9] The MUA does not object to the introduction of an impairment-based alcohol and other drugs policy utilising random testing. However, they contend that DP World had an obligation arising from the Agreements to consult with them about the content and implementation of the Policy and that such consultation was inadequate because it was confined to consultation with DP World employees and local MUA officials and did not extend to consultation with the National office of the MUA. DP World counter that no such obligation arose and if it did, it was thoroughly discharged by the manner in which they consulted employees, local officials and the National Office of the MUA about the Policy.

[10] The TWU contend that DP World ought to have consulted with it as although its members are not employees of DP World they are affected by the Policy. The Policy explicitly applies to them when they enter the DP World port operations sites as owner drivers and employees of transport companies. DP World counter that they have no obligation to consult the TWU and further, that the Commission, notwithstanding having granted the TWU right of appearance, cannot arbitrate an outcome that exceeds the boundary of the dispute before it. Therefore, no order could issue that required DP World to consult with the TWU.

[11] The MUA contends that the new term concerning alcohol and drug testing in the provision in Part A of the Agreements that deals with safety means, among other things, that urine testing is not to be incorporated into the Policy or, in the alternative, that it should not be. DP World counters that the new term means that oral swab testing will be incorporated into the Policy but does not rule out other forms of testing, and in particular, that urine testing should be included in the Policy for a second test in circumstances where there is a non- negative result to an initial test. The MUA says that a second test following a non-negative result should be by way of a second oral fluid swab test rather than a urine test and should be limited to testing for the substance that was found in the first test. DP World disagrees and contends that a urine test should be used and does not agree that it should be limited to testing for the substance that was found in the first test.

[12] The MUA advances other components for inclusion in the Policy in proposed order 7.1.4 namely:

• No target testing of employees who have previously returned a non-negative result



• Presence of an MUA delegate on each occasion the randomiser device is used to select employees for testing



• The right of employees to request the presence of an MUA delegate during the testing process



• Replacement of the “two strikes” approach to disciplinary consequences with “three strikes”.

[13] The MUA withdrew its proposal for a change in the detection threshold for tetrahydrocannabinol (THC) and metabolites and now does not contest this element of the Policy which contains cut-off levels that are consistent with the Australian Standard detection levels. 4

[14] The MUA also seeks an order that all disciplinary action taken against any employee for refusing to submit to, or cooperate with DP World for the purpose of testing, or failing a test under the Policy be withdrawn.

[15] The TWU supports the MUA and proposes further refinements to the Policy.

[16] DP World resists each of these.

Key considerations for the Commission

[17] Both the MUA and the TWU propose particular orders to arise from these proceedings that capture the outcomes each seeks in terms of process (consultation about the development, content and implementation of the Policy) and substance (the content of the Policy). Two considerations arise in relation to each order. Does the Commission have the jurisdiction to make the order? If so, is the order, on its merits, an appropriate resolution to the dispute?

Consultation about the content and implementation of the Policy

[18] The MUA and the TWU both seek orders to the effect that DP World should consult with them about the development, content and implementation of the Policy.

[19] The orders sought by the MUA concerning consultation are:

“7.1.2 That DP World consult with the MUA in relation to the content and implementation of a new drug and alcohol policy in accordance with Part A clause 22 of the:

DP World Brisbane Enterprise Agreement 2011

DP World Fremantle Enterprise Agreement 2011

DP World Melbourne Enterprise Agreement 2011 and

DP World Sydney Enterprise Agreement 2011

7.1.5 That the parties are required to consult regarding the development of a new drug and alcohol policy which takes into account the conditions set by the above orders.” (Referring to the changes sought to the substance of the Policy)

[20] The TWU supports the orders proposed by the MUA. The TWU did not propose specific wording for an order/s in relation to truck drivers but its submissions made it clear that it sought meaningful consultation with DP World about the content of the Policy and made a range of suggestions as to that content. It suggested that one option would be to order the removal of all references to truck drivers from the Policy and consult with the TWU in developing a national policy for truck drivers.

Does the Commission have the jurisdiction to make the MUA orders?

[21] I have already found 5 that Clause 22 of the Agreements applies to the Policy. Clause 22 to the extent relevant reads as follows:

“22.0 INTRODUCTION OF CHANGE

22.1 This Agreement recognises that Company management is obligated to carry out its responsibilities in accordance with Company policies and additionally, where such policies relating to production, program, organisation or technology may also affect the rights and interests of its Employees, Company management is also obligated to consider the rights and interests of its Employees in the implementation of such policies.

Accordingly:

22.2 Company duty to notify

22.2.1 Where the Company has made a definite decision to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes and the National Secretary and relevant Branch Secretary of the Union.

22.2.2 Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs and the use of contractors.

22.3 Company duty to discuss change

22.3.1 The Company undertakes to discuss with the Employees affected and the Union, inter alia, the introduction of the changes referred to in clause 22.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes.

22.3.2 The discussion shall commence as early as practicable after a decision has been made by the Company to make the changes referred to in clause 22.2. For the purposes of such discussion, the Company undertakes to provide in writing to the Employees concerned and the Union, all appropriate information about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees.

22.4 Implementation of change

22.4.1 It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with thirty (30) days notice.

22.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWA for conciliation and arbitration if necessary.”

[22] In my decision of 19 April 2013 6 I found as follows:

“[40] Having considered the wording of clause 22 of the Agreements in the context of the Agreements I find that it does apply to the Policy. Accordingly I find that the Commission has the power to arbitrate to resolve a dispute in relation to the alleged failure to properly consult in relation to the Policy. I make no finding as to whether there has been a failure to consult in accordance with clause 22 of the Agreements as that matter remains the subject of argument on the merits.”

[23] I reiterate that I find that the Commission does have jurisdiction to make the orders sought.

Should the Commission make the MUA orders?

[24] It is now appropriate to consider whether there has been a failure to consult over the Policy in accordance with clause 22 of the Agreements or whether further consultation should be required.

[25] It is uncontested that DP World communicated with its employees via electronic and written means and commenced consultation with employees and local MUA delegates through site meetings from May 2012.

[26] It is also uncontested that the Policy was provided to the Assistant National Secretary of the MUA in June 2012 and he did not communicate any concerns in writing about the Policy to DP World until 7 November 2012.

[27] Mr Smith gave evidence that this was because there was a “process of engagement with the workforce and the committees” 7 underway. An email from Andrew Adam, Director Operations, DP World, ANZ Region - Sydney of 6 August 2012 to Mr Smith was contained in Mr Smith’s statement as WS-8. The email stated in part “Drug and Alcohol Policy rollout – all site committees and local MUA branch officials have been given a copy of the policy. The implementation of the Policy is being managed locally. Please find attached above a copy of a Pocket Guide that will be distributed to all employees.”

[28] Mr Smith accepted that this was an update from DP World. He accepted that he did not respond to it nor put the MUA’s concerns with the Policy in writing to DP World until 7 November 2012. He gave evidence to the effect that he expected that DP World would revert to the National Office of the MUA to conclude consultation once the process of engagement at a local level had concluded, but he accepted that there was no explicit agreement that this would be the process.

[29] Should DP World have been proactive in seeking the National Office view of the Policy in order to honour its consultation obligation? There is no doubt that if DP World had done so it may have become aware of the MUA concerns earlier than 7 November 2012. However, it seems to me that there was a misunderstanding between the MUA and DP World about the process of consultation concerning the Policy. There is nothing in the evidence that suggests that DP World was avoiding scrutiny of the Policy or “railroading” the Policy through. DP World did more than pay “lip service” to its consultation obligations. It is unfortunate that those responsible in DP World for finalising the Policy in the “exposure” period between May and September 2012 were not provided with feedback from the MUA that could reasonably have been taken into account and given rise to changes to the Policy. I accept that the first DP World knew of the particulars of the MUA concerns about the Policy was 7 November 2012.

[30] The conduct of the application to the Commission made on 11 November 2012 to deal with the dispute in effect became the consultation between DP World and the National Office of the MUA sought by the MUA. The parties met in conference before the Commission in November and December 2012 and also directly in December 2012. Some matters were agreed during those discussions. The deficiencies in consultation that are complained of were overcome by those discussions. The fact that those discussions did not resolve all the MUA concerns suggests that further consultation would be of no utility. There is no case for the blanket orders proposed in order 7.1.2 or order 7.1.5. No purpose would be served by further consultation as this decision determines the issues raised by the MUA. I decline to issue the orders sought.

[31] However, the Commission suggests that the ongoing implementation of the Policy should be the subject of regular dialogue between DP World and the MUA. To avoid a repeat of the past where DP World and the National Office of the MUA were at odds concerning the process of consultation they should initially reach agreement about the approach to be taken to ongoing dialogue about the Policy. The Commission is available to assist by facilitating discussions to this end at the parties’ request.

Should the Commission order consultation between DP World and the TWU?

[32] This matter comes before the Commission pursuant to the dispute resolution procedure in the Agreements and the Commission’s power is defined by the Fair Work Act2009 (the Act) and the terms of the Agreements in what is often described as a process of “private arbitration”. 8

[33] The dispute resolution procedure is found in clause 24 of the Agreements as follows:

“24 Dispute Resolution

In the event of a dispute arising in the workplace in regard to the application of this Agreement or the National Employment Standards (other than under s65(5) and 76(4) of the Act), the procedure to be followed to resolve the matter shall be as follows:

24.1 The parties shall attempt to resolve the matter at the workplace level including but not limited to.

24.1.1 The Employee, the Employee's (my emphasis) delegate (if requested), and his or her supervisor, meeting and conferring on the matter; and

(a) If the matter is not resolved at such meeting, the parties arranging further discussions involving more senior levels of management, Employee Representatives and Union officials (as appropriate).

(b) If the matter is not resolved at such a meeting the parties arranging further discussions involving more senior levels of management (as appropriate).

(c) If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties, after which time either party may refer the matter to FWA for conciliation.

(d) If the matter is referred for conciliation, both parties will participate in the process in good faith.

(e) Where the dispute has not been resolved despite the foregoing procedures being followed and subject to there being no stoppage of work in relation to the issue at hand, either party may refer the matter to FWA for arbitration if necessary in which case the decision will be accepted by the parties subject to any appeal rights.

(f) During the time when the parties attempt to resolve the matter, either at the workplace level, or through conciliation or arbitration, the parties shall continue to work in accordance with their contract of employment.

24.1.2 The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.”

[34] The use of the word “parties” throughout the clause is clearly intended to refer to the parties who are bound by the Agreements as set out in clause 4 Parties Bound as follows:

“4 Parties Bound

4.1 This Agreement shall be binding on the Company and its relevant Employees engaged in stevedoring operations as stevedoring employees, in Award Classification Grade 1 to Grade 6 and the Maritime Union of Australia.”

[35] The TWU submit that given its coverage of truck drivers it would be appropriate for DP World to consult with them about the Policy as the representative of the truck drivers working at the DP World container terminal facilities. They invoked the provisions of the Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination 9 and the requirements in the Workplace, Health and Safety Act 2012 (Cth) and the Work, Health and Safety Act 2011 (NSW) in support of this submission.

[36] DP World submitted that the Commission does not have jurisdiction beyond the parties to the Agreements. Mr Perry cited the decision of Ives DP in CDK Commercial Construction Pty Ltd and Construction, Forestry, Mining and Energy Union, CDK Commercial Construction Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005 – 2008 (CDK Case) 10 in support of this proposition and I agree with his submission.

[37] DP World also submits that the Commission does not have jurisdiction to enforce the provisions of a State-based industrial instrument nor legislation addressing workplace health and safety and I accept that submission.

[38] Mr Stone gave evidence that he was subject to the Owens Drugs and Alcohol Policy which he is perfectly happy to comply with because “we have an agreement in place that was the result of a thorough consultation process.” 11 Mr Dixon gave evidence that he was subject to the Drugs and Alcohol provisions in the ACFS Port Logistics Driver Handbook and he had no objection to it.12 They each gave evidence in some detail about what amounted, in their opinion, to deficiencies in the communication and consultation process between DP World and truck drivers concerning the Policy. Ms Samimi in particular gave evidence outlining the approach that had been taken to communicate with truck drivers at Port Botany and DP World contended that it took all appropriate steps to advise truck drivers of the Policy.

[39] Mr Pirc gave evidence about approaching DP World in October 2012 about the Policy and attending meetings on 10 October and 1 November 2012. Mr Nightingale gave evidence about a meeting that was held in between these meetings on 22 October 2012. Mr Aird gave evidence about correspondence between the TWU to DP World and proceedings concerning the same subject matter in the Industrial Relations Commission of NSW (IRC). This correspondence and the proceedings before the IRC described these concerns including arrangements for parking vehicles in circumstances of a non-negative test, access to the sites to retrieve vehicles impounded in circumstances of a non-negative test and arrangements to re-access sites to resume work.

[40] Mr Bilston’s evidence about the meetings differed in both tone and nature from the accounts of the meetings given by Mr Pirc and Mr Nightingale. The outcome of the proceedings were not in dispute. The TWU concluded, in effect, that the meetings did not amount to genuine consultation whereas DP World countered that while there was no obligation to consult, they did so by meeting with the TWU on three occasions.

[41] I consider that I can only arbitrate to resolve a dispute between DP World, its employees and the MUA. Truck drivers are, by and large, not employees of DP World and it is uncontroversial that they are not covered by the Agreements. Therefore, there can be no question of Clause 22 - Introduction of change, applying to truck drivers or the TWU and I cannot arbitrate to resolve a dispute arising in relation to the application of this clause of the Agreements. I decline to issue the order sought. However it is worthwhile noting that good policy is best attained by considering the needs and concerns of all persons affected. As the Policy is implemented it will no doubt be monitored and reviewed. Although I consider that I unable to issue an order to this effect, I believe that regular dialogue between DP World and all stakeholders, including truck drivers, their chosen representatives and their employers would improve the ongoing implementation of the Policy.

Content of the Policy

Orders sought to change the content of the Policy

[42] The MUA seeks specific changes to the Policy. The orders sought by the MUA concerning changes to the Policy as contained in their amended application 13 are:

“7.1.4 That in relation to any DP World Drug and Alcohol policy which applies to MUA members:

• screen and confirmatory testing is confined to oral fluid swab testing and urine testing is not to be utilised



• confirmatory testing is confined to testing for the drug identified as returning a positive or non-negative on the screen test



• the cut-off level for THC be 100 year uGL (withdrawn)



• all testing is to be random and target testing is not permitted



• a MUA delegate may be present for the random selection process



• a MUA delegate may participate at any stage during the drug and alcohol testing process if requested to do so by a MUA member



• a three strikes disciplinary policy to apply.”

[43] Further orders of a procedural nature were sought as follows:

“7.1.1 That DP World refrain from any further application of the DP World Alcohol and Other Drugs Policy 2012

7.1.3 That all disciplinary action taken against any employee for refusing to submit to, or co-operate with DP World for the purpose of testing, or failing a test under the DP World Alcohol and Other Drugs Policy 2012 be withdrawn

[....]

7.1.6 That the parties report back to the commission on a date to be set

7.1.7 Such other orders as the Commission deems fit in the circumstances of the Application.”

[44] The TWU support these orders proposed by the MUA and propose a range of other options and suggestions, amounting to requests for orders, concerning the content of the Policy as follows:

“The orders

401. If the Commission finds that its jurisdiction is confined to making orders only in respect of the Agreement then it is only fair and reasonable that the content of the Policy be changed so that its coverage is confined to those covered by Agreement, namely DPW employees. This would require an order ordering the removal of all references to truck drivers from the Policy.

402. It might be appropriate to supplement the above order with one that was issued in the Shell Refining case. In which case, the Commission should order DPW to insert a clause that requires all contractors and third parties to adopt similar polices within six months.

403. This order can be further supplemented by amending the CAA to require all transport companies to demonstrate they have such a policy in place when applying for access to DPW sites.

404. However, a more positive solution, and one that is in line with improving safety at all DPW sites, would be the negotiation of port-wide policies on a national basis. This would obviously include meaningful negotiations with all stakeholders.

405. Another possibility that did in fact work was for truck drivers to return to their own yards for testing under the policies in place in their own yards.

406. A further possibility would be for the Commission to order that DPW negotiate a separate truck drivers policy just like Patrick Stevedores is currently doing. This is a reasonable way of dealing with the unique circumstances of truck drivers.

407. If the Commission is not with us on these suggestions then it should consider orders that address the problems identified in the Policy, by for example, ordering DPW to:

i. Adopt a saliva testing method;

ii. Remove the discriminatory effects of the policy;

iii. Ensure it is written in Plain English;

iv. Make provision for those who cannot read and write;

v. Make provision for those whose first language is not English;

vi. Ensure truck drivers have access to their union during the testing process;

vii. Introduce an appeal mechanism whereby a truck driver can challenge any decision to limit entry to DPW sites;

viii. Make proper provision for what happens to a truck if the driver tests positive, particularly an owner driver;

ix. Remove the provision that requires a donor to sign over ownership of their sample to the testing company;

x. Annex a consent form to the Policy;

xi. Ensure all transport companies have a copy of the Policy;

xii. Ensure all truck drivers are provided with their own sample for independent testing;

xiii. Ensure truck drivers have access to rehabilitation services;

xiv. Ensure truck drivers have access to education and training on the Policy and their rights and responsibilities under it;

xv. Ensure truck drivers are compensated for any lost pay during the testing process (if they are not impaired);
xvi. Ensure the Policy has a mechanism whereby truck drivers can have a grievance addressed in respect of the Policy or its effect (with the assistance of their union);

xvii. Ensure that the privacy and confidential medical information of truck drivers is maintained;

xviii. Ensure the process for gaining re-entry to DPW is straightforward, expedient, uniform and hassle-free; and

xix. Take any other measure necessary to address the negative impact highlighted in the evidence before the Commission.

408. In the very least, the Commission should ensure that the Policy complies with the instrument that is the accepted standard for drug and alcohol polices in the transport industry, namely the MRD.

409. The TWU seeks any other order the Commission considers appropriate in all the circumstances.” 14

Jurisdiction in relation to the proposed orders to change the content of the Policy

[45] In the case of each order the question of whether the Commission has the jurisdiction to make the order arises. As I have already said in relation to the TWU above the Commission’s jurisdiction to resolve the dispute arises from the Agreements themselves and the relevant section of the Act, namely s.739. The Commission’s power is confined to arbitration within the bounds of the dispute arising in the workplace in regard to the application of the Agreements.

[46] In my decision of 19 April 2013 15 I said:

“[25] I have characterised the dispute as being about the content and implementation of the Policy and an alleged failure to properly consult in relation to the content and implementation of the Policy.

The content and implementation of policy

[26] The Policy is the subject of the Agreements in clause 17.8 which reads as follows:

‘17.8 Drug and Alcohol testing

The parties acknowledge that the Company's drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

This clause does not set out the full terms of the policy but reflects the parties agreement that there is a policy and that it will have certain features. If either of the parties were to repudiate random drug and alcohol testing and swab testing they would, arguably, be in breach of the Agreements. If there is a dispute about the implementation of random drug and alcohol testing and swab testing then it seems to me that it falls squarely in the category of a dispute about the application of the Agreements in the manner described in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Theiss Pty Ltd.

[27] DP World say that the Policy does not form part of the Agreements. I agree. The Policy itself is not incorporated into the Agreements such that non-compliance with the Policy would be a breach of the Agreements. However that there is a policy and that it will contain certain features is a part of the Agreements and it is a part of the Agreements over which there is a dispute.

[28] Mr Burns for the MUA described the areas of difference between the parties as being in relation to cut off levels, target testing, confirmatory urine testing, delegates participation and discipline. Some or all of these matters arise from the way in which random testing and swab testing is implemented and the consequences of the implementation. As such they are inextricably linked to clause 17.8 of the Agreements.

[29] It is important not to conflate the question of whether the dispute about the Policy is a dispute regarding the application of the Agreements with the question of whether the Commission would have the power to order certain changes to the Policy. That would be a matter for consideration during arbitration on the merits. Some outcomes would be within the power of the Commission to order and some would not. However it is impossible to determine this without hearing the merit arguments.”

● MUA orders

[47] Clause 8.10 of the Agreements provides that “prior to any change being inserted into a policy, any dispute or disagreement by Employees or the Union in relation to intended change (sic) policies and/or procedures shall be progressed through clause 24.0 Dispute Resolution.” The dispute resolution provision of the Agreements contained in clause 24 of the Agreements allows the Commission to arbitrate in relation to “a dispute arising in the workplace in regard to the application of the Agreement or the National Employment Standards”. The Agreements confine reference to the Policy to the testing regime, including random testing and swab testing. This is the subject matter that arises from the application of the Agreements and I believe that the MUA orders sought are incidental to these matters.

[48] Accordingly I find that each of the orders proposed by the MUA is within the power of the Commission to grant as each order is incidental to the testing regime which is the subject of clause 17.8 - Drug and Alcohol Testing of the Agreements.

[49] There is one order sought by the MUA where a jurisdictional argument is raised in support of the order. I will address that here while I am on the subject of jurisdiction. The order in question is the order to confine testing to oral swab testing. The MUA contends that the Agreements mean that the Policy cannot contain urine testing. DP World disagrees.

[50] Section 739(5) of the Act reads as follows:

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

[51] Section 12, The Dictionary, of the Act defines a fair work instrument to include an enterprise agreement, therefore, the Agreements are fair work instruments. Resolution of this point requires me to interpret the instruments.

[52] The approach to the interpretation and construction of enterprise agreements was considered by a Full Bench in a recent appeal decision about the calculation of back pay for a group of employees. Co-incidentally this dispute was between the MUA and DP World in relation to the meaning of the DP World Brisbane Enterprise Agreement 2011 (the 2011 Agreement). In DP World Brisbane Pty Ltd v The Maritime Union of Australia (DP World case) 16 the Full Bench helpfully reviewed the authorities as follows:

“[28] The task of construing an expression in an enterprise agreement (such as the expression ‘subject to any appeal rights’ in clause 24.1.1(e)) begins with a consideration of the ordinary meaning of the words having regard to their context and purpose. As Gleeson CJ and McHugh J observed in Amcor Limited v CFMEU:

‘The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’

[29] Context may appear from the text of the agreement taken as a whole, its arrangement and the place in it of the provision under construction. The legislative context against which the agreement was made and in which it was to operate is also a relevant contextual consideration.

[30] The task is to identify the common intention of the parties as expressed in the terms of their agreement, the subjective intentions or expectations of the parties are irrelevant. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd the High Court described the task, in the context of commercial contracts, as follows:


‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.’

[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

[32] The Acts Interpretation Act1901 (Cth) may also be applicable to the construction of agreements approved under Division 4 of Part 2-4 of the Act, as if the agreement were an act. This may be so because of the operation of s.46 of the Acts Interpretation Act 1901 (Cth), which states:

‘s.46 Construction of instruments

(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purpose of the Legislative Instruments Act 2003 nor a rule of court, then

(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and

(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.

(2) If any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.’

[33] The application of the Acts Interpretation Act 1901 (Cth) to awards made by the Commission was the subject of some consideration by French J (as he then was) in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo), in which his Honour said:

‘The interpretation of legislative instruments is dealt with in the Legislative Instruments Act 2003 (Cth). Awards and agreements made under the Act are declared, by s 7(1) of the Legislative Instruments Act, not to be legislative instruments — see Item 18 in the table set out in s 7(1). This leaves such awards and agreements within s 46 of the Acts Interpretation Act 1901 (Cth).
...

An award is an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.’

[34] Section 7(1) of the Legislative Instruments Act 2003 (Cth) declares that ‘fair work instruments (within the meaning of the Fair Work Act 2009)’ are not ‘legislative instruments.’ The definition of a ‘fair work instrument’ in s.12 of the Act includes an enterprise agreement. An ‘enterprise agreement’ is defined to include, relevantly, a ‘single enterprise agreement’ which is in turn defined to mean an enterprise agreement made as referred to in s.172(2). The 2011 Agreement is such an agreement. It follows that for the purpose of s.46(1) of the Acts Interpretation Act 1901 (Cth) enterprise agreements may be instruments which are neither legislative instruments nor a rule of court.

[35] Section 46(1) of the Acts Interpretation Act 1901 (Cth) may apply because an enterprise agreement is an instrument which is neither a legislative instrument nor a rule of court and which is made by an authority (the Commission) pursuant to a power conferred on it by the Act. While s.182 speaks of an enterprise agreement being ‘made’ when a majority of the employees that will be covered by it cast a valid vote to approve the agreement, the operation and enforcement of enterprise agreements is contingent on their approval by the Commission. Enterprise agreements come into operation seven days after their date of approval by the Commission, or from any later date specified in the agreement itself (s.54(1)). Section 50 provides that a person must not contravene a term of an enterprise agreement that applies to the person. This is a civil remedy provision and means that enterprise agreements are enforceable in the same way as awards and other instruments made under the Act. An agreement only applies to a person while it is in operation (s.52) and as we have noted an agreement only operates once it has been approved by the Commission.

[36] A consequence of the application of the Acts Interpretation Act 1901 (Cth) to enterprise agreements would be that extrinsic materials may be used as an aid to construction, as provided for in s.15AB of that act.

[37] While the parties before us accepted that the Acts Interpretation Act 1901 (Cth) applied to enterprise agreements, it is unnecessary for us to decide this issue because in the circumstances of this case there is no relevant extrinsic material as to the parties’ mutual intentions in respect of clause 24.1.1(e).”

[53] Turning firstly to a consideration of the ordinary meaning of the words having regard to their context and purpose.

[54] The words to be construed, repeated here for convenience, are as follows:

“17.8 Drug and Alcohol testing

The parties acknowledge that the Company's drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

[55] Clause 17.8 of the Agreements acknowledges the existence of the Policy and requires the Policy to include a testing regime. It refers to two elements of the testing regime namely, random drug and alcohol testing and swab testing.

[56] In relation to the words “random drug and alcohol testing” the use of the word “includes” makes it clear that random testing is a feature, or a sub-set, of the testing regime. It is noted that subject to their objection to target testing of individuals upon return to work after a non-negative result, the MUA does not complain about the presence in the Policy of post incident or at risk testing. 17 Such testing is a form of for cause testing that is not random but stimulated by an occurrence or observation. It is not at issue but I conclude that “random drug and alcohol testing” is not the only form of testing that the Agreement permits the Policy to contain.

[57] The words “will utilise swab testing” qualify the words “testing regime”. This means the testing regime in the Policy “will use” swab testing. This suggests that testing regime cannot include any urine testing and remain consistent with the Agreements.

[58] If the words “will utilise swab testing” qualified the words “random drug and alcohol testing” then only random drug and alcohol testing would be confined to swab testing. Other method/s of testing could be used for non-random testing. This is the understanding conveyed by Mr Jena in his evidence 18 but I do not think this is a literal reading of the sentence.

[59] Had the sentence read:

“The parties acknowledge that the Company's drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing which utilises swab testing”

a different conclusion could have been reached.

[60] DP World contends that there is nothing in the Agreements prohibiting DP World from using an additional method of testing. 19 This is so, however, it relies on an interpretation of the sentence as though it read “which includes random drug and alcohol testing and will utilise swab testing”. Given the industrial context and purpose of the clause I find it hard to accept that interpretation. On the other hand the acceptance by the MUA of breath testing for alcohol,20 which would be constrained if my reading of the clause is correct, fortifies the interpretation preferred by DP World.

[61] Extrinsic materials were tendered however they were relied upon by the MUA and DP World to bolster different recollections of their respective intentions during negotiation.

[62] The extrinsic materials tendered were records of the negotiation of Part A of the Agreements.

[63] It is uncontested that the MUA described its claim in relation to this element of the negotiation as “for cause swab testing as per Fremantle system”. 21 It was uncontested that in Fremantle the existing policy was “for cause” oral testing followed by urine testing. Mr Smith gave evidence that the reference to the Fremantle system by the MUA during the negotiations sought to emphasise “for cause” testing as the West Australian Branch in particular was opposed to “random” testing.22

[64] The final position that the parties reached, reflected in a document dated 28 July 2011 23 was in the precise form written in the Agreements as follows:

“17.8 Drug and Alcohol testing

The parties acknowledge that the company's drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

[65] It was uncontested that the matter was not referred to again during the remaining negotiations following the 28 July 2011 record of agreement.

[66] DP World contends that they maintained their position throughout the negotiations for the agreements that confirmatory tests be conducted by way of urine testing and the MUA was aware of this position when it agreed to the terms of clause 17.8. The MUA contends that they understood that they had conceded to accept random testing and DP World had conceded to accept oral swab testing with the result that there would be no urine testing. Mr Jenna gave evidence that he participated in the negotiations in relation to this matter and he agreed that the MUA sought oral swab testing but understood this to be for the initial random test and said there was no discussion about the details of confirmatory testing.

[67] It is to be remembered that the task of interpretation is to identify the common intention of the parties as expressed in the terms of their agreement. The subjective intentions or expectations of the parties are irrelevant. The Full Bench in the DP World case quoted above referred to the use of extrinsic materials. However, the use of those materials can only be an aid to construction by ascertaining the common intention of the parties as expressed (my emphasis) in the terms of their agreement. The hopes, aspirations and assumptions of parties in negotiations, unless realised in the final agreement or demonstrated by other extrinsic materials, are not relevant to the interpretation of the agreement at a later date.

[68] I am not assisted in arriving at the interpretation favoured by the MUA by reference to the record of the negotiations. On the face of it the reference to the “Fremantle system” is more readily explicable as a claim for the introduction of the Fremantle system. It is uncontested that the Fremantle system was for-cause oral testing with urine testing to follow in the case of a non-negative result. It does not help me to be told that the MUA used the term “Fremantle system” as a shorthand way to propose for-cause testing. I note that this conclusion is undermined by the fact, uncontested, that all sites at that time had policies containing for-cause testing.

[69] Logically the shorthand term “Fremantle system” highlights oral swab testing more than for cause testing since it was only in Fremantle that oral swab testing was used and for-cause testing was used at all sites.

[70] I am in no doubt that the method of testing the parties intended to be used for random tests was oral swab testing. However, there is no evidence before me that indicates that the parties gave explicit joint consideration to the method of testing to be used for a second test. Each appears to be relying instead upon unspoken assumptions.

[71] Notwithstanding my literal reading of the clause I am left with sufficient doubt about its meaning that it becomes necessary for me to give consideration to the merit of using urine testing for a second test. I will do so in the consideration of the merits of the other MUA orders below.

● TWU orders

[72] The TWU orders are more problematic. Can an intervener in a private arbitration seek orders? I am in no doubt that I cannot grant an order concerning the application of the Agreements to truck drivers or the TWU. However, if the applicant supports the orders, as in the CDK case, it would appear that the Commission can make orders that concern the application of the Agreements even if urged by the submission of an intervener.

[73] I find against the TWU on jurisdictional grounds in relation to their proposals contained in paragraphs 401 - 406 above as each requires the Commission to oblige DP World to take an action or provide a benefit in relation to truck drivers or the TWU. For that reason the proposals contained in paragraphs 407 vi, vii, viii, xi, xii, xiv, xv, xvi, xvii, xviii, xix also fail. The proposal in paragraph 408 is outside the power of the Commission to order for the same reason and also because it sails close to the wind of the Commission enforcing an industrial instrument of another jurisdiction.

[74] As the MUA supports the orders sought by the TWU I will consider the proposals contained in paragraph 407 i, ii, iii, iv, v, ix, and x on the merits along with the merits of the MUA orders below.

Merits of the proposed orders to change the content of the Policy

[75] The orders seek to change a policy of an employer. A touchstone for considering the merit of any intrusion into management decision making is the landmark case Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (the XPT case). 24 This case is authority for the proposition that the Commission should interfere with employer decision making only if the employer is seeking from the employee something which is unjust or unreasonable.

[76] I will approach the task of assessing the merit of the proposed orders by testing them against the principle of the XPT case and asking the question “would it be unjust and unreasonable to implement the Policy with the features complained of or without the features contained in the orders?”

● Use of urine test following a non-negative oral test (MUA)

[77] The Policy provides drug and alcohol screening and testing protocols at part 5.3 Drug and Alcohol Screening and Testing Protocols and includes:

“(g) If the screen is a ‘non negative/positive’, based on testing kit indicators, the employee will be required to provide a urine sample for confirmation purposes.”

[78] The MUA and the TWU oppose this element of the policy and propose in the alternative that a further oral fluid test is undertaken. In effect, they assert that it would be unjust and unreasonable to invade the privacy of an individual to undertake a test that is likely to reveal more about the individual’s lifestyle than their fitness for work, when an oral fluid test is available to achieve the purpose of the Policy. DP World, in effect, assert that the second test is a confirmatory test that is necessary to achieve the purpose of the Policy and the cost of any personal inconvenience or intrusion into the life of the individual is outweighed by this benefit.

[79] A recent decision of a Full Bench of the Commission helpfully summarised the recent history of the Commission’s consideration, and that of tribunals in other jurisdictions, of the merits of different methods of workplace drug testing. In Mr Raymond Briggs v AWH Pty Ltd (Briggs Case) 25 the Full Bench reviewed what they described as the “controversial” history in paragraphs 1 - 5 of their decision before concluding that the matter before them did not require them to attempt to resolve the controversy.

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

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

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

[3] Industrial tribunals have accepted at least since the 1998 decision of the Western Australian Industrial Relations Commission in BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australian Branch that the implementation of a program of random and targeted drug testing is a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy. As the Full Bench put it in that case:

‘...current standards and expectations of the community concerning health and safety in the workplace as evidenced by legislative prescriptions and judgements of courts and industrial tribunals are such that there will, of necessity, be some constraint on the civil liberties at times and, in particular, an intrusion into the privacy of employees.’

[4] However, no consensus has developed in decisions of industrial tribunals as to what is the most appropriate method of testing. The testing program approved in the BHP Iron Ore Case involved urine testing, but scientific developments since that time, including the development of an Australian oral fluids testing standard (AS 4760), have made saliva testing a credible alternative. Thus in Shell Refining (Australia) Pty Ltd v CFMEU, Senior Deputy President Hamberger determined as follows in a dispute resolution process conducted under Division 3 of Part 13 of the Workplace Relations Act 1996:

‘I note that the Western Australian Industrial Relations Commission in Court Session in the BHP Iron Ore Case specifically found that a random testing programme using urine samples was justified on safety grounds – and indeed was both fair and reasonable. However that case was decided ten years ago. Since then oral fluid testing has become available and an Australian standard for oral fluid testing has been developed. The question now is whether it would be unjust or unreasonable for the company to implement a urine based random testing regime with its wide “window of detection”, with all that implies for interfering with the private lives of employees, when a much more focussed method is available, where a positive test is far more likely to indicate actual impairment, and is far less likely to detect the use of drugs at a time that would have no consequential effect on the employee’s performance at work.

My conclusion is that the implementation of a urine based random drug testing regime in these circumstances would be unjust and unreasonable.’

[5] A somewhat different conclusion was reached by the NSW Industrial Relations Commission (Connor C) in Holcim (Australia) Pty Limited v Transport Workers' Union of New South Wales. Connor C determined that while saliva testing might in time become the more appropriate, convenient and accurate testing method, it had not yet developed to the point that it should displace the more established method of urine testing. In CFMEU v HWE Mining Pty Limited Lawler VP agreed with the decision in Shell insofar as ‘laboratory testing of saliva is essentially as reliable as laboratory testing of urine in detecting relevant drugs’, but found that in the case of on-site testing, which the employer in that case required to be undertaken, ‘the currently available on-site screening devices for saliva’ were ‘materially less reliable’ than for urine testing. In Endeavour Energy v CEPU, (Endeavour Case No.1 - my addition) Hamberger SDP concluded that introduction of a urine testing policy in that case would be unjust and unreasonable because an employee could breach the policy through private conduct which had no effect on work capacity, and because of the availability of saliva testing as an alternative. This decision was upheld on appeal as being ‘open and appropriate’ in the circumstances of the case. The Full Bench in that appeal said in addition:

‘The approaches and policies to be adopted by employers on drug and alcohol testing in the workplace will depend upon what is deemed appropriate according to their needs and the circumstances.’”

[80] The Full Bench concluded in Briggs Case that the direction to the applicant to undergo a urine test was not unreasonable.

[81] However, in a recent decision of the Commission in Endeavour Energy (Endeavour Energy Case No.2) 26 Hamberger SDP declined to vary his decision, referred to by the Full Bench in Briggs Case, that introduction of a urine testing policy would be unjust and unreasonable. This case is particularly relevant because it was decided after, and indeed in the light of, the recent decision by the National Association of Testing Authorities (NATA) to no longer offer accreditation to facilities for on-site initial drug testing of oral fluid. DP World put the NATA decision forward as a reason why the Policy should provide for a confirmatory urine testing. They said:

“This is a development of the utmost significance to this matter, and requires a reassessment of the basis on which earlier decisions of the Commission were made.” 27

[82] The Endeavour Energy Case No.2 undertook that reassessment and decided not to disturb the original decision. It should be noted that NATA had not accredited any organisation prior to its decision. An Australian Standard for oral fluid testing still exists. It is Australian Standard 4760. (AS 4760-2006: “Procedures for specimen collection and the detection and quantitation of drugs in oral fluid”) It provides, amongst other things, for the accreditation of oral fluid laboratory testing and there are organisations that are accredited.

[83] Hamberger SDP reviewed the standard in this decision as follows:

“AS 4760-2006: Procedures for specimen collection and the detection and quantitation of drugs in oral fluid

[1] The preface to AS-4760:2006 indicates that the objective of the standard is to ‘provide requirements and guidance on the mechanisms of incorporation of drugs in oral fluid, factors that might affect drug concentration, applicability of oral fluid for drug testing and general issues related to drug detection on-site and in the laboratory. Also to ensure that the preliminary (if not already conducted on-site) and confirmatory laboratory procedures meet the needs for the detection and quantitation of drugs in oral fluid.’

[2] The first section of the standard is a general introduction and includes a series of definitions. It notes that oral fluid drug testing technology is evolving rapidly and there is yet to be an accepted ‘cut-off’ concentration for target drugs. Target concentrations in the standard refer to the threshold concentrations of drugs in undiluted oral fluid that should be achieved wherever possible since these represent concentrations attained some hours following common use of the listed drug. ‘Initial testing’ - also known as a screening test - is defined as ‘a valid method used to exclude the presence of the drug or class of drugs.’ On-site initial testing is to be done using ‘immunoassay’ devices. The standard recognises that this form of testing can never definitively identify a drug. In all cases, technicians operating immunoassay devices are required by the standard to have successfully completed a course of instruction in compliance with the standard for on-site testing and received a statement of attainment in accordance with the Australian Quality Training Framework.

[3] Section 2 of the standard deals with the collection, storage, handling and dispatch of oral fluid to the laboratory. It also refers to on-site initial testing, though the section indicates that this is described in more detail in Section 3. It states that ‘It is important that whatever on-site oral fluid testing device is used, it is fit for the intended purpose of detecting drug use.’ It recommends that selection of a suitable on-site device and establishment of the initial testing procedure be carried out in consultation with the accredited laboratory performing the confirmatory testing and all relevant parties. The collecting agency is required to monitor the performance of the on-site testing device. ‘Collecting agency’ is defined in Section 1 as ‘An accredited organisation to assume professional, organisational, educational and administrative responsibility for collection, initial testing if applicable, storage and dispatch of the oral fluid specimen.’

[4] Section 2 states that ‘appropriately trained individuals (collector or technician as defined in section 1) are required to assume professional, organisational, educational and administrative responsibility for all of the following: collection, initial testing, storage, and dispatch of the oral fluid specimen.’ The section then goes on to deal with issues such as privacy, security, consent forms and chain-of-custody, the integrity and identity of the collected specimen, and transportation to the laboratory. It includes the following:

‘If initial on-site testing is performed (refer to Section 3) the collector shall ensure that in the event of any unconfirmed result(s), there is a suitable separate specimen to enable confirmatory laboratory testing to be performed. This includes the provision of a separate referee’s specimen at the point of collection.’

[5] Section 3 is headed ‘On-site initial testing’. It states that ‘on-site initial testing shall be performed by a technician (as defined in Clause 1.3.38) from an appropriately accredited collecting agency.’ The section deals with the procedure to be used for on-site initial testing, the report to be issued to the requesting authority, the dispatch of a suitable specimen to an appropriately accredited laboratory for confirmatory testing, and record-keeping. This section provides that the collecting agency is to ensure that appropriate quality control procedures are implemented to monitor performance. It states that ‘Each day, immediately prior to the testing of the specimens, a minimum of one positive and one negative quality control shall be run for each lot number used. Positive and negative controls shall be used alternately.’ It then provides further details of how the quality-control testing should take place. The section also includes the following:

‘Where a suitable proficiency testing program exists, the collecting agency shall participate. Otherwise, a minimum of 1 and thereafter 1 out of every 20 subsequent donor specimens that produced a negative result shall be forwarded to an appropriately accredited laboratory for analysis, for quality-control purposes.’

[6] Sections 4 and 5 deal with laboratory initial testing and confirmatory testing procedures respectively.

[7] 14 facilities have been accredited under Section 2 of the standard. Five facilities have been accredited under Section 4, and 10 under Section 5. No organisation has ever been accredited under Section 3.”

[84] Whilst I am informed by previous decisions of the Commission, in coming to my decision I have considered the circumstances of this case as revealed in the evidence and submissions before me. The most compelling evidence in relation to this question was given by the two scientific experts Dr Robertson and Professor Christie in relation to testing for the presence of drugs in an individual.

[85] It is to be remembered that the purpose of the Policy is to address the workplace safety risks associated with the use of alcohol and/or other drugs. The Policy sets out the classes of drugs that will be tested for and the Australian Standard detection cut off levels for both oral fluid and urine samples for both screening and laboratory confirmation. Both Dr Robertson and Professor Christie gave evidence that Australian Standard detection cut off levels were set for detection purposes rather than impairment levels.

[86] It is convenient to summarise the evidence of Dr Robertson and Professor Christie that I regard as salient to this point on a drug class by drug class basis.

[87] Cannabis: Dr Robertson said that the presence of the drug in oral fluid is evidence of recent use, whereas the presence of the drug in urine is evidence of either recent use or use a day or days prior to. 28 If it is present in oral fluid it has been used in recent hours. With urine testing it could have been taken 30 minutes ago or 3 days or 2 weeks ago.29 Cannabis is only detected for a few hours in oral fluid and how many hours depends on variables like how much is smoked.30 The period of impairment after cannabis use is up to 4–6 hours which is longer than the window of detection in oral tests.31

[88] Professor Christie said that there is emerging consensus that 5 muGL in blood or oral fluid of active THC is associated with significant impairment. Impairment starts 30 minutes after cessation of smoking and lasts for 4-6 hours after a standard dose. The acceptable test for this concentration is a blood test and the next most acceptable test is a urine test. Professor Christie said that in his opinion the Australian Standard concentration of 25 muGL in oral fluid was five times higher than it should be. A urine test detects a concentration for a longer period than the period of impairment and cannot reveal when the drug was ingested. Therefore, the urine test does not reveal impairment. Detection in the first hour or two by a urine test is unreliable because of the reservoir of clean urine in the bladder. Recent smoking is best detected by an oral test. Cannabis is one of the drugs that does not have a serious after effect. The usual method of ingesting cannabis smoking (in 99/100 users). An oral fluid test cannot detect cannabis that has been eaten. Oral testing only detects what has been left in the mouth. The oral fluid test detects either particulates from the smoke or the absorption into the tissues of the mouth leeched out into the oral fluid. It does not detect presence in the bloodstream as the drug does not come back from the blood stream into the oral fluid. 32

[89] Professor Christie has a concern about stability of some drug classes during the testing process, especially THC, lost in transit but NATA has no concern of this kind in relation to urine. If you screen at 10 muGL then seek to confirm at 10 muGL you can lose concentration so as to return a negative confirmatory test when the screen test was positive. 33 I note that the cut off in the Policy is 25muGL for oral fluid and this is now not opposed by the MUA.

[90] Amphetamines/psychostimulants: Professor Christie described this class of drugs as including cocaine and methamphetamines. He said that there is no measured relationship between the amount of methamphetamines and risk but after the amphetamine starts to wash out of the body the risk goes up because of the “crash” effect. If you do find it in blood there is a reasonably short time window – 48-72 hours from use and although there is no correlation between concentration and risk there is an immediate intoxicating effect and that does correlated with risk. The acceptable test is oral fluid or urine. 34

[91] MDMA: Professor Christie said that a 0.5mg does was equal to 100muGL and correlates with impairment for 2-6 hours then 2-3 days later there is a hangover effect. The acceptable test is oral or urine. 35

[92] Opiods: Professor Christie said that opiods includes oxy-codeine, heroin and morphine. He said that blood levels for impairment are 20–50 (up to 200) muGL, however, regular clinical users, e.g those under methodone treatment, show no impairment. The acceptable test is oral fluid or urine. 36

[93] Benzodiazepines: Professor Christie said that these included sedatives, sleeping pills and anti-anxiety medication. The effect and duration depends on the particular Benzodiazepine but Normison and Mogadon have effects on the morning after the night they are used. The immediate sedating effect is only 2-4 hours but you still see impairment 12 hours later. He said that consistent use reduces the effect. The acceptable test is urine because oral tests are not sensitive enough as Benzodiazepines are tightly bound to blood proteins and only the free unbound portion can pass from blood plasma into oral fluid. 37 Dr Robertson says Benzodiazepines are a family of drugs used for a range of clinical applications, by and large sedative, hypnotic drugs used for treating social anxiety, e.g Valium, Xanax. He said they can be taken at an impairing dose and can be addictive. He agreed that they can cause a “hang-over” effect but said he is not a fan of the term and said it is the residual effect of the drug itself but conceded it can be impairing. Unlike Professor Christie, Dr Robertson said it is possible to use an oral test to detect Benzodiazepines and while it is not in the Australian Standard to test for them by oral fluid there are many oral fluid devices that do test for them.38 I note that in Endeavour Case No. 1, upheld on appeal, SDP Hamberger ordered that a target concentration for benzodiazepines should be determined by the applicant in consultation with its service provider.

[94] The conclusions I draw from this evidence are:

• 99% people who use cannabis smoke it



• Impairment from smoking cannabis commences 30 minutes after cessation of smoking and lasts for 4-6 hours



• An oral fluid test will not detect cannabis at the Australian Standard detection level (10 - 25mu/GL) in the first 30 minutes after smoking



• An oral fluid tests will not detect cannabis that has been eaten



• An oral fluid test will not detect cannabis at all at the 5muGL or (5 nanograms per millilitre) level of concentration preferred by Professor Christie



• A urine test is unreliable in the detection of cannabis at the Australian Standard detection level in the first hour or two after smoking



• An oral fluid test will detect cannabis at the Australian Standard detection level in the detection window commencing 30 minutes after smoking and ending up to 2-3 hours after smoking. Detection of cannabis in an oral fluid sample reveals recent use and provides feedback of the likelihood of impairment.



• A urine test will detect cannabis at the Australian Standard detection level in the detection window commencing 1-2 hours after smoking and ending days or even weeks after smoking. Detection of cannabis in a urine fluid sample reveals use, but does not reveal the time of use and thus provides no feedback concerning the likelihood of impairment.



• A serious drawback in relation to cannabis from a safety perspective in an oral fluid test is that in the window of hours 4 to 6 from smoking, an individual may be impaired, but the drug may not be detected



• A serious drawback in relation to a cannabis urine test from a safety perspective is that in the window of hour 0.5 up to hour 2 from smoking, an individual may be impaired, but the drug may not be detected



• A drawback of a second oral fluid test in relation to cannabis, if it is to be processed in the laboratory, is the loss of concentration in transit



• Both oral and urine tests have drawbacks in relation to cannabis, however, for the purpose of assessing impairment and risk to safety in the workplace an oral fluid test is preferable to a urine test



• In relation to amphetamines/psychostimulants, MDMA and opiods for the purpose of assessing impairment and risk to safety in the workplace an oral test is of equal utility to a urine test



• In relation to Benzodiazepines for the purpose of assessing impairment and risk to safety in the workplace a urine test is preferable to an oral fluid test



• In relation to Benzodiazepines it is possible to detect the drug in oral fluid as long as the device used and the cut off level is appropriate.

[95] Much of the evidence was directed to the merits of oral fluid and urine testing per se. In this case the parties have already chosen to use oral fluid as the initial test. The only issue to be determined is whether the second test should use oral fluid or urine.

[96] The Policy provides that an individual who returns a non-negative result to an initial test will be provided with transportation and remain absent from work until the result of the second test is known.

[97] The implications of this are that the results of a second test, whether oral fluid or urine, will not affect the immediate risk to the workplace of the presence of the relevant individual. This is because the effect of the Policy is that a non-negative result from an oral fluid test will result in the individual being removed from the workplace for a period of time that is likely to exceed the impairment period. This is not to suggest that a second test has no purpose. It is particularly important to detect a false non-negative test because there are significant disciplinary consequences flowing from returning a non-negative result.

[98] The question to be considered is whether it is unjust and unreasonable to use urine for the second test.

[99] Urine testing is more personally intrusive than oral fluid testing even when, as is the case at DP World, it provides for urination behind closed doors. Urine testing may reveal personal choices of individuals that do not present a risk to safety in the workplace, but compromise their autonomy and dignity and lead to serious disciplinary consequences including job loss.

[100] Using urine for the second test can only be considered just and reasonable if it is necessary to achieve the purpose of the Policy such that the reduction in risk to safety outweighs the compromise of employees’ interests.

[101] The evidence in relation to cannabis reveals that using urine for the second test would, if a non negative result was returned, provide no more information than using oral fluid for the second test. The possibility of oral fluid not detecting the presence of cannabis in hours 4 to 6 after smoking will not be overcome by using urine in the second test because a non-negative oral fluid test is required to trigger the second test and urine cannot detect time of use. In any event the risk is removed by the individual being removed from the workplace after the non-negative result in the initial test. The risk of a negative result in a second oral fluid test due to sample deterioration in transit was described by Dr Christie but I do not think that this risk, of itself, justifies the second test changing method to urine. Furthermore, there seems to be no reason why the second test could not also be processed onsite. In relation to the risk of oral fluid testing not detecting cannabis that is eaten I think in a risk based system a testing regime should be designed to manage the risk presented by the majority, not a tiny minority of users.

[102] The evidence in relation to the Benzodiazepines is conflicting, although it appears clear that oral fluid testing for Benzodiazepines is at least a challenge. As the trigger for the second test is a non-negative result to a drug that can be detected in oral fluid the logic of the argument in favour of urine testing for Benzodiazepines must be that risk management dictates that an individual who returns a non-negative result to a drug other than Benzodiazepines should then be tested for Benzodiazepines using urine.

[103] I acknowledge Dr Christie’s opinion that this approach is warranted. He said:

“Many drug users consume more than one drug or use drugs that might not easily be detected by one test method but are detected by another” 39

[104] However he provided no empirical evidence concerning the incidence of multiple drug use. If testing for Benzodiazepines is a priority surely the method used for the initial test should be chosen for its utility in testing for Benzodiazepines.

[105] In relation to Benzodiazepines I consider that the parties should adopt the approach ordered by Hamberger SDP in the Endeavour Energy No 1 Case. I also observe that at any time management has a reasonable apprehension that an individual is impaired for any suspected reason then a lawful direction to stop work can be given. It is not necessary for this to be contained in a policy for this to be so. The Policy should never take the place of vigilance in this regard.

[106] The evidence in relation to other drugs is that there is no difference in the utility between urine and oral fluid. In such circumstances the competing interests dictate that it would be unjust and unreasonable to impose a method that compromised employees’ privacy with no gain to reduction in risk to safety.

[107] On balance I think that use of urine for a second test following a non-negative oral test is unjust and unreasonable and I will order that both the initial and second tests use oral fluid and not urine. It is appropriate for DP World to determine whether those tests are processed on site or in a laboratory.

● Confirmatory testing confined to testing for the drug identified as returning a positive or ‘non-negative’ on the initial test (MUA)

[108] Dr Robertson’s evidence was that a confirmatory test should be the same as the initial screen and he said that this was in the Australian Standard. 40 Dr Christie said there was no reason why another method could not be chosen. This evidence is not contradictory. If the purpose of a second test is to confirm an initial test then I believe the same methodology should be used. It follows that the test should not be confined to screening for the drug that returned a non-negative result. It would be unjust and unreasonable to widen the range of drugs to be screened but just and reasonable to repeat the test for the same suite of drugs. The order will reflect this approach.

● Target testing (MUA)

[109] The MUA object to target testing of individuals who have returned to work after a non-negative result. I think that it would be prudent to monitor an individual who has returned a non-negative result upon return to work for a period of time. The period of time proposed by DP World in its correspondence 14 December 2012 to the MUA 41 is 6 months and this does not seem unreasonable to me. I decline to issue the order sought.

● Conduct of random selection process (MUA)

[110] The MUA would like a MUA delegate to be present when the independent third party provider attends a site and uses the Randomiser App to select individuals for testing. This was the practice in the early stages of the implementation of the Policy. It makes sense that in the early stages of a new policy representatives of the workforce familiarise themselves with the process and reassure themselves and their constituency of the integrity of the process. However I think the ongoing presence of a MUA delegate on every occasion the independent third party provider attends a site would compromise efficiency of the site and is unnecessary. I have no doubt that if the MUA have reason to believe the process lacks integrity they will bring this to the attention of DP World and if necessary use the provisions of the Agreement to seek the assistance of the Commission. However the Policy should not be changed to reflect this requirement for it to be a just and reasonable policy and I decline to issue this order.

● MUA delegate present during conduct of test (MUA)

[111] The MUA would like a MUA delegate to be free to participate at any stage during the drug and alcohol testing process if requested to do so by a MUA member and DP World propose this opportunity be confined to circumstances where an employee has tested positive or “non-negative”. For the same reason that I believe the random selection of individuals for testing should be conducted by the independent accredited testing organisation I think it is unnecessary and undesirable for a MUA delegate to be present during the initial testing. However if an individual returns a non-negative result they need support and I note that DP World does not object to this. I will order that in the circumstance that an individual returns a non-negative result in an initial test the individual may request the presence of a MUA delegate for the conduct of a confirmatory test and any subsequent engagement with DP World concerning the consequences of the result of the test.

● Disciplinary policy (MUA)

[112] The MUA seek a “three strikes” disciplinary policy. In relation to disciplinary action the Policy states:

“6.5 Disciplinary Action

A breach of this policy by an employee and/or the direction issued pursuant to the policy, is a serious matter, potentially threatening the health and safety of all employees. Accordingly, a breach of this policy will result in appropriate disciplinary action which may include termination of employment.” 42

[113] The MUA referred to the DP World approach as “two strikes”.

[114] I think any arbitrary rule in relation to the disciplinary consequences of a breach of the Policy is unwise. Management should exercise discretion given the variety of circumstances that might arise.

[115] I note that management decisions in relation to termination of employment may be the subject of review of the Commission. Given the desirability of discretion being exercised and the potential for review of management decisions by the Commission I regard the content of the Policy as appropriate and not unjust or unreasonable. I decline to issue the order sought.

● Saliva testing method (TWU)

[116] This matter is addressed above and no further comment will be made.

● Discriminatory effects of the Policy (TWU)

[117] There is insufficient evidence of specific discriminatory effects of the Policy to warrant any changes to the Policy. I decline to issue an order to this effect.

● Literacy (TWU)

[118] The proposal for the Policy to be written in Plain English, provision for those who cannot read and write and provision for those whose first language is not English could require an investment in materials and equipment the need for which has not been substantiated by the evidence. Accordingly I find that it would not be unjust or unreasonable to retain the Policy in its current format. I decline to issue an order to this effect.

● Donor ownership of sample (TWU)

[119] The TWU seeks the removal of the provision that requires a donor to sign over ownership of their sample to the testing company. The Policy does not address this matter save for a reference to the collection of samples to be analysed in accordance with, amongst other things, Australian Standard 4760:2006, which addresses the chain of custody of samples. The matter was not the subject of detailed evidence or submissions and it is not apparent to me that ownership of the sample is transferred from the donor to the testing company. I note that the Policy provides:

“5.3 Drug and Alcohol Screening and Testing Procedures
........

(o) All the information contained on the identification seals will be entered onto Chain of Custody documentation and will be signed by both the collector and the donor, certifying ownership of the sample provided as well as giving consent for the sample to be tested in accordance with the appropriate Australian Standard.” 43

The Policy is not unjust and unreasonable in this respect and I decline to issue the order sought.

● Annexure of a consent form to the Policy (TWU)

[120] This proposal has merit as individuals familiarising themselves with the Policy will be able to see a prototype of the form they will be invited to sign if they are selected for a random drug test. I cannot conclude that the Policy would be unjust and unreasonable without this feature but I recommend it to DP World.

Procedural orders

[121] In light of the decisions outlined above concerning changes to the Policy the procedural orders contained in paragraph 43 are declined.

Conclusion

[122] The Policy is something about which the Agreements anticipate that consultation should occur.

[123] The quality of consultation that took place between DP World and its stevedoring employees and local MUA representatives was affected by the assumption, on the part of the MUA, that the Policy would be the subject of discussions between its National Office and DP World before it was finalised.

[124] DP World’s consultation with employees and local representatives was genuine. The National Office of the MUA was tardy in responding to the overtures of DP World and the quality of consultation was diminished as a result.

[125] The conduct of the application to the Commission to deal with the dispute overtook the consultation with the National Office of the MUA and dealt with the issues as far as was possible by consultation. This decision determines the issues raised by the MUA and there would be no utility in ordering further consultation on the content of the Policy at this time.

[126] However the ongoing implementation of the Policy should be the subject of regular dialogue between DP World and the MUA.

[127] The TWU is not covered by the Agreements and the Commission has no jurisdiction to order that DP World consult with the TWU. Discussions to date have been wracked with conflict and less than worthwhile. Consultation about the ongoing implementation of the Policy between DP World and the TWU would be sensible.

[128] Each of the orders proposed by the MUA is within the power of the Commission to grant as each order is incidental to the testing regime which is the subject of clause 17.8 Drug and Alcohol testing of the Agreements. Clause 24 Dispute Resolution of the Agreements provides that a dispute arising in the workplace in regard to the application of the Agreements may be resolved by arbitration.

[129] I have also considered whether, as an intervener, the TWU is in a position to propose changes to the Policy. I conclude that they are, so long as those changes pertain to the dispute between the MUA and DP World about the Application of the Agreements. The TWU orders that would give rise to an obligation on DP World in relation to truck drivers or the TWU are beyond power.

[130] The merit of the orders sought was tested against the principle espoused in the XPT case that in relation to matters of policy, the Commission should interfere with employer decision making only if the employer is seeking from the employee something which is unjust or unreasonable.

[131] Having considered the evidence and submissions in this matter I conclude as follows:

• The method of testing for drugs in an initial random test (initial test) and a second test designed to confirm the results of the initial test (confirmatory test) is to be by way of oral fluid and not urine.



• Confirmatory tests for drugs are to test for the same drugs as the initial test.



• In the circumstance that an individual returns a non-negative result in an initial and confirmatory test it would not be unjust or unreasonable for testing of that individual to be undertaken from time to time for a period of 6 months after return to work utilising oral fluid testing.



• It is not unjust or unreasonable for a MUA delegate not to be present to observe the conduct of the random selection of individuals for testing undertaken by an independent third party provider using the Randomiser App.



• It is not unjust or unreasonable for a MUA delegate not to be present to observe the conduct of an initial test. However it is appropriate for an individual who returns a non-negative result in an initial test to have the right to request the presence of a MUA delegate for the conduct of a confirmatory test and in any subsequent engagement with DP World concerning this.



• In relation to disciplinary policy clause 6.5 of the Policy is not unjust or unreasonable in providing for “appropriate disciplinary action”. DP World should not rigidly apply any arbitrary rule concerning disciplinary action such as “two strikes and you are out” or “three strikes and you are out”.



• DP World and the National Office of the MUA should enter into dialogue to attempt to agree on a process of consultation for review and monitoring of the ongoing implementation of the Policy, including at site level through existing consultative processes.



• DP World and the National Office of the MUA should meet regularly to review and monitor the ongoing implementation of the Policy, including at site level through existing consultative processes.

[132] An order will issue arising from this decision.

DEPUTY PRESIDENT

Appearances:

M Burns, W.G. McNally Jones Staff Lawyers, for The Maritime Union of Australia

C O’Callaghan for the Transport Workers’ Union of Australia

D Perry, Herbert Smith Freehills; Seyfarth Shaw for DP World Brisbane Pty Ltd, DP World (Fremantle) Limited, DP World Melbourne Limited and DP World Sydney Limited

Hearing details:

2013.

Sydney:

9, 10, 11 (Videolink to Melbourne), 12 September.

Final written submissions:

29 November 2013

 1   DP World Brisbane Enterprise Agreement 2011 [2012] FWAA 4414, DP World Fremantle Enterprise Agreement 2011 [2012] FWAA 4839, DP World Melbourne Enterprise Agreement 2011 [2012] FWAA 3837 and DP World Sydney Enterprise Agreement 2011 [2012] FWAA 3861

 2   [2013] FWC 2394

 3   Transcript PN120

 4   Ibid. PN4782

 5   [2013] FWC 2394

 6   Ibid.

 7   Transcript PN968

 8   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Another (2001) 203 CLR 645; Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464

 9   Exhibit TWU 8, Attachment GN2

 10   PR974122

 11   Exhibit TWU2

 12   Transcript PN1959

 13   Amended Application of the MUA - 2 July 2013

 14   Written Submissions of the TWU - 30 October 2013

 15   [2013] FWC 2394

 16   [2013] FWCFB 8557

 17   Clause 5.6 - DP World Alcohol and Other Drugs Policy 2012

 18   Transcript PN2746

 19   Respondents’ Closing Submissions - 18 November 2013, p.14

 20   Transcript PN 1424

 21   Exhibit DPW 11 - Statement of Jessica Blomfield, Attachments JB1 p.17 and JB2 p.39

 22   Ibid. PN839, 844

 23   Exhibit DPW 11 - Statement of Jessica Blomfield, Attachment JB3 p.58

 24 (1984) 295 CAR 188

 25   [2013] FWCFB 3316

 26   [2014] FWC 198

 27   Respondent’s Closing Submissions - 18 November 2013, p.21

 28   Transcript PN503

 29   Ibid. PN732

 30   Ibid. PN506

 31   Ibid. PN514

 32   Ibid. PN3388-3466

 33   Ibid. PN3355, 3441

 34   Ibid. PN3407, 3408, 3412 and page 18 Exhibit DPW9 Expert Report

 35   Ibid. PN3418

 36   Ibid. PN3420, 3477

 37   Ibid. PN3423, 3452

 38   Ibid. PN516-524

 39   Exhibit DPW9, p.29

 40   Transcript PN575-576

 41   Exhibit MUA2 - Statement of Warren Smith, Attachment WS13

 42   DP World Alcohol and Other Drugs Policy 2012, Exhibit DPW 11 - Respondent’s Evidence Volume 1, p.239, Statement of Jessica Blomfield, Attachment JB13

 43   Ibid., p.234

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