A recent decision of the Fair Work Commission explored the lawfulness and reasonableness for an employer to require employees to be cleanly shaven, particularly where the ‘reasonable’ direction is tied to workplace health and safety.

The Background

Tasmanian Water (“TasWater”) employ operators who regularly repair faulty pipes which often requires them to cut through cement, bricks, asphalt and other substances.  Given the nature of the employment, the operators are often exposed to the risk that these materials would release hazardous airborne particles like asbestos or crystalline silica which can cause serious illness or even death. As the employer, TasWater owes Work Health and Safety obligations, they are required “to eliminate or minimise the relevant risks so far as practicable”. Of note was the risk that facial hair often prevented respiratory protective equipment (“RPE”) from properly sealing to an employee’s face.

While there had always been a TasWater procedure containing a requirement that employees be clean shaven when using RPE, this was not “strictly enforced”. However, in mid-2022, TasWater commenced a review which, by December 2023, resulted in a decision to enforce full compliance to be cleanly shaven. A number of employees did not comply, and the union disputed the reasonableness of this direction. The dispute eventually resulted in an arbitrated decision.

The Commission ultimately found that the direction to be cleanly shaven was lawful and reasonable for several reasons.

The Reasoning

Employees have a fundamental duty to obey reasonable and lawful directions which fall within the scope of their employment contract. Determining a direction’s reasonableness is a question of fact which must take all the circumstances into consideration.

In this case, there were a number of factors as to why the direction was reasonable:

1. The direction was aimed at ensuring the employees did not become ill or die and was in the employee’s best interests.
2. The direction was consistent with and a reasonable discharging of their Work Health and Safety duty.
3. Work Health and Safety Regulations require employers to provide employees with appropriate personal protective equipment and evidence demonstrated that for RPE to be effective, the employee must be clean shaven.
4. The revised procedure was implemented after extensive consultation.
5. The requirement to be cleanly shaven was not onerous given the deadly nature of the potential harm.
6. The direction was applicable only to employees likely to perform work requiring the usage of RPE.
7. Alternatives to RPE (for example, powered or non-powered air purifying respirators) were not cost effective and not appropriate for all the same tasks.
8. The revised procedure allowed for appropriate exceptions (for example, medical exceptions) and was not absolute.

More broadly, the Commission confirmed that reasonable directions do not necessarily need to be the preferable decision or the most appropriate course of action. Further, they are also not required to be in accordance with the relevant industry’s “best practice” or even the best interests of the relevant parties.

Takeaways for Employers

Whether it is reasonable to direct your employees to shave their goatee or trim their handlebar will ultimately be based on the scope of the contract and circumstances of employment. For TasWater, it was a reasonable direction not because it was tied to a visual preference of the employer, but because it ensured the effectiveness of RPE for the safety and “best interests” of their employees and it was neither onerous nor arbitrarily applied.

Vanessa Yol, Associate and Daniel Prodigalidad, Paralegal