ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Mt Arthur Coal Enterprise Agreement 2016 – applicant participated in random drug and alcohol test at work – later that night was directed to undertake further drug test and refused to do so – issued with a final written warning – applied to Commission to deal with dispute in accordance with dispute settlement clause in Agreement – unsuccessful conciliation of dispute – Commission to determine four questions in dispute – inconsistency in parties evidence – respondent contended to have collected first urine sample at about 7:05pm and second sample at about 7:40pm, whereas applicant contended to have provided sample at 6:45pm and 7:05pm – Commission found it unlikely that applicant would have been able to provide first urine sample so early in circumstances where not advised of selection earlier and considering having to wait to have test completed – the drug and alcohol tester contended that sample was ‘extremely warm to touch’ and alerted to possibility of sample being adulterated – sample was ineligible as temperature was too hot – requested second sample from applicant – second sample had same physical presentation as previous sample, namely, it was turbid and cloudy – was negative for drugs, however tester requested applicant be escorted back to health clinic to provide third sample so that there was no question of integrity – believed applicant was under the influence of drugs which potentially may have caused a hazard or risk to himself and/or other employees at the mine – was not allowed to touch bag or go out for a smoke – request for smoke was within the scope of the Testing Policy as supervisor would be escorting – refused to take third test – applicant was aware that refusal to provide further urine sample would be considered a breach of Mt Arthur’s drug and alcohol procedures – applicant stood down and driven home – Commission found that applicant breached the Drug and Alcohol Procedure by refusing to undertake drug test – not unreasonable for respondent to issue applicant with final written warning – not unreasonable for respondent to require applicant to meet with the Employee Assistance Program provider – drug and alcohol testing had not been unreasonable and had been in accordance with policies and procedures – Commission declined to grant any relief sought by applicant – application dismissed. Muller v Mt Arthur Coal P/L t/a Mt Arthur Coal
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