Commission rejects unions’ claims on employer’s changes to WHS procedures

Commission rejects unions' claims on employer's changes to WHS procedures

Commission rejects unions’ claims on employer’s changes to WHS procedures

The Fair Work Commission has settled a dispute in favour of a government corporation, rejecting union claims that a direction by the employer to employees to comply with new safety procedures was not a lawful and reasonable direction.

Tasmanian Water and Sewerage Corporation (TasWater) is a state government corporation providing drinking water and sewerage services across the state. They operate and maintain water treatment plants, sewerage treatment plants, the piping network, and related infrastructure.

TasWater maintains a “Service Delivery” function comprising approximately 400 employees, many of whom are employed as operators. Regularly, operators are engaged in cutting through material, which results in airborne hazardous materials, including asbestos and crystalline silica, both of which can cause severe illness or death if inhaled.

Under TasWater’s health and safety obligations, they must ensure control measures are in place to minimize risks to workers. To control exposure to airborne hazards, operators must use Personal Protective Equipment (PPE) such as disposable dust masks and half-face respirators, such as Non-Powered Air Purifying Respirators (NPAPR) and Self-Contained Breathing Apparatus (SCBA).

Since August 2021, TasWater has been reviewing its PPE procedures. They identified that the procedure when using SCBA was deficient in that it did not explicitly state that operators must be clean-shaven to ensure that the seal to the masks is fully closed. They acknowledged that they had not consistently enforced the intention that operators need to be clean-shaven.

TasWater’s Head of Health and Safety reviewed the procedure and learned that SCBA is only effective as a control measure if an operator wearing it is clean-shaven between the face and the face seal. She subsequently recommended a revised procedure, which management accepted.

In June 2022, TasWater commenced a year-long consultation process with the Workforce Consultative Committee (WCC), union delegates and officials, HSRs, various levels of management, and affected employees. They encouraged feedback from all levels.

In simple terms, the procedure explained that any employees with stubble, a moustache, sideburns or a beard would be unable to undertake activities, as the PPE was not secure. Consequently, the principal union at the workplace, the CEPU, lodged a dispute objecting to the introduction of the new procedure.

In submissions before Deputy President Val Gostencnik, the union claimed that TasWater’s insistence that employees be clean-shaven while at work was an unreasonable direction. They submitted that other PPE would be sufficient, sought exemptions for four employees who refused to shave, and claimed that the PPE was inappropriate for use based on previous experiences.

The Deputy President rejected the union’s submission, accepting that the new procedure was consistent with TasWater’s WHS obligations.

In particular, he highlighted the extensive consultation process that the corporation engaged in, including 26 consultation meetings with individual teams, 13 written communications, four meetings with unions, three WCC meetings, several meetings with HSRs, and a number of toolbox meetings with employees. As he noted, “Throughout the lengthy consultation period, employees, HSRs and the unions had many opportunities to provide feedback to TasWater”.

Ultimately, “The direction to comply with the revised procedure and its clean-shaven requirement is an appropriate control measure directed to genuine health and safety risks in the workplace …”.

Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2023/7631) 28 March 2024

For queries about unions, consultation, workplace health and safety, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 441.0624

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