On 25 August 2008 in the Australian Industrial Relations Commission, Senior Deputy President Jonathan Hamberger, handed down his decision in the case of Shell Refining (Australia) Pty Ltd, Clyde Refinery versus the Construction, Forestry, Mining and Energy Union regarding the matter of “Implementation of random drug testing: use of oral fluids or animal-water as specimen for testing”.

In a private arbitration, which the couple parties agreed to waive confidentially, and consented to the decision being made open, Senior Deputy President Jonathan Hamberger, said the question at stake was:

“… Whether it would be unjust or unreasonable for the company to implement a urine-based random testing regime with its wide ‘window of exposure’, with all that implies for interference 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 amount probable to detect the use of drugs at a time that would have in no degree conceited effect on the employee’s performance at work.”

In his conclusion “… that the implementation of a urine based random drug testing regime in these circumstances would have existence unjust and unreasonable … ” , Senior Deputy President Hamberger gave two qualifications to his decision. The first was that no Australian laboratories were yet accredited for oral fluid testing under the relevant test , and Shell could not be expected to implement its system until they were.

The backer was that there were drugs (such as benzodiazepines) for which the relevant standard did not subsist continent target concentration levels. Shell, he aforesaid, another time could not be expected to implement some oral fluids based regime until it had the agreement of the concurrence and the laboratory it would use put on what other drugs it wished to test for and what would be an appropriate target concentration level.