1 Fair Work Act 2009 s.739 - Application to deal with a dispute Construction, Forestry, Maritime, Mining and Energy Union v Patrick Stevedores Holdings Pty Ltd (C2023/4456) COMMISSIONER RIORDAN SYDNEY, 5 OCTOBER 2023 Application to deal with a dispute – Recommendation. [1] The parties appeared before the Fair Work Commission (the Commission) on 13 September 2023, in relation to the interpretation of the Patricks Fitness for Work (Drugs and Alcohol) Standard Operating Procedure (Procedure). [2] Whilst agreement could not be reached during the Conference, the parties agreed that they would accept a recommendation from the Commission in relation to the issue. [3] It is not in dispute that neither party supported or condoned the attendance at work of any employee, including managers, who may be under the influence of drugs or alcohol. [4] Further, the parties were satisfied with the current oral fluid testing regime, as long as it maintained and delivered on its accuracy standards. I am satisfied that the current process of all “non-negative” swab tests and 10% of all tests being further tested in a laboratory ensures the ongoing accuracy of the oral fluid testing regime. [5] In my opinion, any negative test which tests positive in the laboratory must be processed in accordance with the Procedure. To do otherwise would be contrary to the ambition and focus of the parties in relation to ensuring a safe workplace for all. [6] Therefore, I recommend the following change to the Procedure: - Confirmatory Testing A procedure that uses calibrated specialised equipment in a laboratory to identify and quantify the presence of a specific drug or metabolite against the limits in the Australian Standards. Confirmatory Testing is conducted on all samples that are “Non Negative” and on 10% of the total number of samples. The purpose of Confirmatory Testing is to verify accuracy of testing processes and equipment. Any Positive Result from Confirmatory Testing may result in the Breach Procedure in this document being applied. [2023] FWC 2596 RECOMMENDATION [2023] FWC 2596 2 [7] Patricks have agreed that they will conduct an education process for all employees in relation to this change. Further, Patricks have agreed that any warning that has been given to any employee over the last 12 months as a result of their negative swab test being reversed in the laboratory, will have that warning removed from their file. However, the arrangements which were put in place for any of these employees to return to work after their positive result will continue, including the requirement for additional testing. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR766979>