The case of Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 786 highlights the complexities employers may face in prioritising workplace safety amidst union resistance, and despite serious health risks to its employees.
The Fair Work Commission held that TasWater's updated Personal Protective Equipment (PPE) procedure that requires employees to maintain a clean-shaven face when using respiratory protective equipment is lawful and reasonable. The PPE procedure implemented this clean-shaven requirement in order to ensure an effective seal of an employees' respiratory protective equipment. The Commission found this requirement was a lawful and reasonable direction based on health and safety considerations and was in the best interests of TasWater's employees.
WHS obligations and TasWater's response
Under the Work Health Safety Act 2012 (Tas) (WHS Act), which is harmonised with the WHS legislation in most other states and territories, employers have a legal duty to take all steps to ensure the health and safety of their employees in the workplace so far as is reasonably practicable.
In performing duties, some of TasWater's employees may be exposed to airborne contaminants, like crystalline silica, asbestos and other chemicals. Inhalation of such chemicals can lead to serious illness, or death. One risk mitigation measure was the supply and requirement to wear appropriate PPE when working in certain environments.
A review and risk assessment was undertaken by TasWater of risk mitigation strategies, including with the assistance of an external occupational hygienist, and in light of the manufacturer's instructions on the proper use of the PPE.
It was determined that employees must be clean shaven between the face and the respiratory protection seal when using relevant PPE. TasWater made the decision to mandate a clean-shaven policy to align with industry standards and manufacturer recommendations aimed at optimising the effectiveness of respiratory protection.
TasWater undertook consultation and engagement throughout the process of implementing the revised PPE procedure. This included conducting toolbox talks, distributing informative materials, and engaging in extensive dialogue with employees and their union to address concerns and ensure an understanding of the safety requirements.
What was the Union's problem?
Despite TasWater's proactive approach to consultation and communication with employees and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the CEPU raised objections to the revised PPE procedure and the process in implementing the new procedure.
The CEPU argued that:
- the testing did not demonstrate the benefits of the requirement, arguing that no seal was demonstrated in any event
- there was alternative PPE available which could be used without the need to shave.
In relation to alternative PPE, TasWater demonstrated that this was not a reasonably practicable alternative in light of cost and other matters impacting effectiveness.
The Union also said that only four employees had indicated they would not comply with the requirement.
What did the Commission think?
Thankfully, sensible minds prevailed.
The Commission's focus was on whether the clean-shave policy was a lawful and reasonable direction. The direction was found to be lawful, but was it reasonable?
The Commission stated that it was reasonable, with the following circumstances said to "point squarely" to that being so:
- The direction being aimed at ensuring that TasWater's employees do not become ill or die from silicosis or asbestosis disease;
- The WHS Act required TasWater to ensure, so far as is reasonably practicable, the health and safety of its employees and this is directed to discharging that duty. The WHS regulations specifically require appropriate PPE to be provided, with evidence and guidelines suggesting that they are most effective when clean-shaven;
- Extensive consultation was undertaken;
- The clean-shave policy was not an onerous requirement on employees when balanced against the possible dire consequences of inhaling silica and asbestos;
- The policy had limited application to those who will, or are likely to, perform work which requires use of relevant PPE;
- Exemptions were available, in limited and appropriate circumstances.
Lessons
Some lessons here for employers in implementing safety measures is to ensure:
- the measures are based in evidence and are directly responsive to identified risks (and that can be demonstrated);
- the measures are reasonable in the circumstances and proportionate to the identified risk; and
- there is meaningful consultation with employees and their representatives in implementing the measures.
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