What is a lawful and reasonable safety instruction?

Key employer learnings

The Deputy President provides some very clear guidance on what is a lawful and reasonable employer decision.
The background to the implementation showed that the employer did their homework. This was not a knee jerk reaction to a hazard.
The employer undertook appropriate communication and consultation with employees. Reading between the lines this was a significant factor for the Deputy President. If there had been inadequate consultation, he may have directed the parties to revisit this.
While this case was focussed on the Tasmanian WHS Act the same principles are adaptable Australia wide and in relation to other safety related changes.

The Fair Work Commission decision has provided guidance to employers when implementing new safety practices which employees may refuse to follow.

The case involved a large state Government service provider, TasWater, implementing a PPE policy which requires operators to be clean shaven for the PPE to provide an effective seal.

The Commission decision centres around whether the direction was lawful and reasonable as two distinct components. While this decision applies to a narrow purpose – the requirement to be clean shaven to wear facial PPE – the principles can be extended much more broadly.

A selection of TasWater employees undertaking certain tasks may at times be exposed to a range of airborne contaminants such as chlorine, crystalline silica, asbestos, airborne pathogens, hydrogen sulphide and carbon dioxide in the course of their duties. The inhalation of such hazardous substances could lead to serious immediate or long-term health concerns including death.

The Employer’s Legal Duty

Under the state Work Health and Safety Act 2012 (Tas), which is harmonised with similar WHS Acts in other states, employers have a legal duty to take all steps to look ensure the health and safety of their employees as far as is reasonably practical. The first step would be to eliminate/remove those risks. Where this is not possible the employer is required to implement other strategies which may may include Personal Protective Equipment to mitigate the risk.

TasWater undertook an extensive review of its safety hazard exposure and practices across all tasks which then highlighted the need to ensure facial PPE was effectively used. It had an existing policy that required employees using facial PPE be clean shaven, but it had never been communicated or enforced.

After undertaking extensive technical research and consultation with employees it was decided that the clean shave policy be implemented in line with industry standards, the PPE manufacturer recommendations and the Australian Standards.

This led to the CEPU lodging a dispute in the Fair Work Commission opposing the change on the basis that it was neither lawful or reasonable. (While most employers would not have a union lodge a dispute notification in this manner, individual employees have other avenues which may lead to the Commission becoming involved.)

The union argued that alternative PPE was available which could be used without the need to be clean shaven. TasWater responded stating that the alternative was not a reasonable practicable alternative in light of cost and that it was not as effective.

It became apparent that the CEPU opposition to the change was centred around 4 employees who intended not to comply with the new clean-shaven mandate.

Lawful & Reasonable Directions

In examining the question of lawful and reasonable the Deputy President made the following statement:

“The proper approach to determining whether the direction, the subject of the dispute, is a lawful and reasonable direction is not controversial. An employee is at common law under a duty to obey lawful directions - those falling within the scope of the employment contract, and which are reasonable. Determining whether a direction is reasonable is a question of fact having regard to all the circumstances. A direction need not be the preferable or most appropriate course of action in accordance with ‘best practice’ or in the best interests of the relevant parties to be reasonable.”

The Deputy President noted that the communication and consultation process in relation to this change had been extensive.

Taking into consideration:

The employer’s legal requirement (Under the WHS Act) to ensure health and safety by eliminating or minimise risks so far as is reasonably practicable;
The clean-shaven policy was necessary to ensure that the PPE TasWater was supplied is in accordance with the manufacturer's specifications and the Australian Standard;
The employee’s obligation to comply and cooperate with any reasonable instruction that is given to allow TasWater to comply with the Act;
That such instruction is a lawfully given instruction under the employee’s employment contract;

the Deputy President stated that the direction issued by TasWater that employees comply with the PPE procedure was lawful.

Thereafter he examined the question of whether such a direction was reasonable.

In support of the finding that the direction was reasonable he made the following points:

The direction is aimed at ensuring that employees do not become ill or die.
The WHS Act requires TasWater to ensure, so far as is practicable, the health and safety of its employees.
The Act requires TasWater to provide its employees with appropriate PPE. For that PPE to be effective, the evidence requires employees to be clean shaven.
The PPE manufacturer and the Australian Standard clearly specify that employees using the PPE must be clean shaven.
The revised PPE procedure was implemented after extensive consultation.
Considering the potential harm of inhaling hazardous materials, including death, the requirement to be clean shaven was not onerous on employees.
The direction is in the best interests of employees and appears to be rational and appropriate.

The Commission decision found that the direction to be clean shave for the PPE to be effective was both lawful and reasonable.

Please be aware that the above is a short summary of an extensive decision. If your workplace has a similar issue we’ll need to look at the detail of this case much more closely and how it applies in your specific circumstances.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au