By
Gaby Grammeno
Contributor
The effectiveness of personal protective equipment (PPE) was at the heart of a dispute raised by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in respect of its members employed with the Tasmanian Water and Sewerage Corporation (TasWater).
TasWater recognised that while performing their duties, some of its employees may be exposed to hazardous airborne contaminants including crystalline silica, asbestos and other chemicals used or encountered at its workplace. As the risk of exposure could not be eliminated, TasWater put various risk control measures in place to manage the risk and reduce the likelihood of exposure.
The risk control measures include the supply and use of appropriate respiratory protective equipment (RPE).
The organisation’s PPE procedure sets out requirements for the selection, approval, use, inspection, maintenance and disposal of PPE. The procedure is readily accessible to employees on TasWater’s intranet and forms part of the training for all new employees and regular follow-up training.
Though the procedure had always implied a requirement for employees to be clean shaven when using RPE, this requirement was not strictly enforced.
After a review of its procedures in mid-2022, the organisation released a revised PPE procedure. This included the requirement for employees to wear appropriate RPE when performing tasks that might expose workers to hazardous airborne contaminants, and was explicit about the need to be clean shaven between the face and the face seal when wearing RPE. Personnel were reminded in early December 2023 that full compliance with the RPE procedure would be required from 11 December 2023.
The ’status quo’ provisions
The CEPU raised a dispute relating to some provisions of a number of Enterprise Agreements covering the members of the CEPU and several other registered organisations.
The Agreements each contain a ‘status quo’ provision whereby the position that existed before the dispute arose will prevail until a dispute is resolved, except where a reasonable concern related to the health and safety of any person exists or the parties agree otherwise.
Before the dispute, the position that existed was that the procedure did not contain an explicit requirement for employees to be clean shaven between the face and the face seal of RPE. Though this requirement was arguably implicit – as the presence of facial hair interferes with the effectiveness of the seal which in turn undermines the wearer’s protection from hazardous airborne contaminants – TasWater did not enforce the PPE procedure’s implicit requirement.
The revised procedure made this requirement explicit.
On 7 December 2023, TasWater applied under s 739 of the Fair Work Act 2009 for the Commission to deal with a dispute in accordance with the dispute settlement procedure of the Agreements. Attempts to resolve the dispute by means other than arbitration were not successful.
In the Commission
The Commission’s task was to answer two questions:
- Was the direction that TasWater employees comply with the TasWater’s PPE procedure a lawful and reasonable direction?
- Did the status quo provision of the [Enterprise] Agreements apply?
With regard to the first question, a lawful and reasonable direction is one which falls within the scope of the employment contract, and is reasonable, having regard to all the circumstances.
The circumstances were that ‘service delivery’ workers needed at times to cut through cement, bricks, asphalt and other substances to access pipes and cut out and replace damaged parts. The process can produce airborne hazardous material, including asbestos and crystalline silica, which can both cause severe illness or death if inhaled.
The CEPU contended that requiring workers to be clean shaven when using RPE was an unreasonable direction because fit testing on conducted on 30 January 2024 on a CEPU delegate had shown that the RPE supplied by TasWater provided no seal and therefore no protection for some employees.
However, evidence from TasWater provided more complete information. On the first day of RPE fit testing, some employees only had one type of mask from which to choose, but those attending on the second day had more options. All who tested passed about half the testing components, achieving the recommended ‘fit factor’ of 100 when breathing normally, deeply and moving their heads. Any employee who did not pass on the first occasion was anticipated to pass overall once they tried an alternative type of mask and were retested. Only two employees failed due to their having visible stubble. Although the CEPU delegate failed the testing on one kind of RPE, he passed when fit tested for two other kinds of RPE.
FWC Deputy President Val Gostencnik accepted TasWater’s evidence, noting that the CEPU delegate’s evidence appeared to have been incomplete.
The direction that employees using RPE must be clean shaven and aimed to ensure that TasWater employees do not become ill or die from silicosis or asbestosis. TasWater was complying with its duties under work health and safety laws, and the relevant Australian Standard (AS/NZS 16975.3:2023) and the manufacturer’s instructions specify that wearers of RPE must be clean shaven to ensure an adequate facial seal. Deputy President Gostencnik was therefore satisfied that the direction was lawful and reasonable.
In relation to the second question, the DP concluded that the answer was ‘No’ – the previous status quo did not prevail, because the Agreements included the qualification that the previous status quo did not prevail if there was a reasonable health and safety concern, which in this case there was.
What it means for employers
For respiratory protection to be effective, employees must be clean shaven where the RPE mask seal touches the face.
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