Bearded water workers in Tasmania will need to shave their facial hair to comply with the proper use of face masks after a union’s legal challenge failed.
In the Fair Work Commission (FWC) recently, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) challenged a directive from the Tasmanian Water and Sewerage Corporation (TasWater) that bearded workers shave in order to have a proper seal between the face and respiratory protective equipment (RPE).
TasWater requires all employees wear appropriate RPE when performing tasks which may expose them to hazardous airborne contaminants including crystalline silica, asbestos, chlorine and hydrogen sulphide as well as pathogens and concentrated carbon dioxide.
After a 2022 review of personal protective equipment (PPE), in September last year TasWater issued a reminder to staff of the requirement for employees to be clean shaven when wearing RPE, and in December, that the requirement would be enforced.
When the FWC’s attempts to resolve the dispute failed, the parties agreed the Commission should determine the dispute by deciding whether TasWater had issued a lawful and reasonable direction, and whether the status quo provision applied, since the PPE policy had been in place since at least 2016.
Deputy President Gostencnik said TasWater conceded the PPE procedure had not been strictly enforced and said the procedure did not expressly require an employee to be clean shaven, although this may have been implicit.
“The only requirement imposed is that “[w]orkers with any facial hair are not permitted to enter potentially contaminated air spaces until they can confirm and maintain a positive seal” [emphasis added], noting that the procedure provided that “[a]ny facial hair (e.g. beard, moustache, side burns) between the skin and the sealing surface of the respirator may prevent an adequate seal” [emphasis added],” he said.
“This is not as strident as the Australian Standard AS1715, which noted that “[f]acial hair lying between the sealing surface of a RPE facepiece and the wearer’s skin will prevent a good seal” and the “[b]eards, moustaches and sideburns prevent satisfactory sealing” [emphasis added].”
However, he said TasWater employees had a duty under Section 28 of the Work Health and Safety Act 2012 (Tas) to, inter alia:
- comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
- co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
“There is no dispute that the direction can otherwise lawfully be given by TasWater as one that is within the scope of the employment and the contract governing the employment relationship,” he said.
“The direction to comply with the revised PPE procedure and its clean-shaven requirement is an appropriate control measure directed to genuine health and safety risks in the workplace earlier identified.”
Deputy President Gostencnik rejected the CEPU’s claim that many employees were not consulted.
“The evidence is that TasWater conducted extensive consultation with its employees, HSRs and relevant unions including through 26 consultation meetings with individual teams, 13 written communications, four meetings with the unions, three WCC meetings; several meetings with various HSRs and a number of toolbox meetings with employees,” he said.
“Throughout the lengthy consultation period, employees, HSRs and the unions had many opportunities to provide feedback to TasWater.”
The CEPU pointed to other matters to argue its case. It submitted that alternative models of RPE were available with sealing surfaces below the level of most beards. TasWater provided evidence these models were not fit for purpose.
The CEPU also submitted that only four of TasWater’s almost 1000 employees had indicated they would not comply with the shaving requirement.
“I take this to be a plea for an exception. The dispute is about some employees refusing to comply with TasWater’s direction. That some employees have refused to comply does not make the direction unreasonable. That the dissenters might be few does not alter that assessment. That TasWater does not agree to except a handful of employees from the direction does not, without more, render the direction unreasonable,” Deputy President Gostencnik said.
He also said if a small number of employees were permitted to “opt out” of the PPE procedure, it was possible other employees would also seek to opt out “and it would be unfair to complying employees and likely cause scheduling issues and delays in the performance of some works.”
Deputy President Gostencnik then concluded a departure from the status quo was justified.
“The concern about health and safety must arise from the maintenance of the status quo,” he said.
“That is, the health and safety concern about a person must arise from the fact that TasWater has not enforced its PPE procedure and that employees did not need to be clean shaven where the RPE mask seal touches the face.
“That is the status quo and, plainly, that raises a concern that employees are at risk of breathing in hazardous materials because they are not clean shaven where the RPE mask seal touches the face.”
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