[2015] FWC 1838
The attached document replaces the document previously issued with the above code on 30
April 2015.
The Decision has been refiled to correct a typographical error in Para [118].
Tara O’Connor
Associate to Commissioner Hampton
Dated 1 May 2015
1
Fair Work Act 2009
s.394—Unfair dismissal
James Felton
v
BHP Billiton Pty Ltd
(U2014/14375)
COMMISSIONER HAMPTON ADELAIDE, 30 APRIL 2015
Application for relief from unfair dismissal - clean-shaven policy adopted in the context of an
underground uranium and other mineral mine - applicant refused to comply with instruction
to attend for work clean-shaven to permit a fit test to be conducted - whether instruction was
lawful and reasonable - whether offer by applicant to supply alternative PPE was reasonable
and meant that there was no genuine link to work health and safety concerns - instruction
found to be lawful and reasonable - offer by applicant not workable or appropriate and did
not make the instruction unreasonable - valid reason for dismissal - dismissal not harsh,
unjust or unreasonable - application dismissed.
1. Background and Case Outline
[1] Mr James Felton has made an application under s.394 of the Fair Work Act 2009 (the
FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, BHP
Billiton Pty Ltd (BHP Billiton).
[2] BHP Billiton conducts an underground mine and metallurgical plant at Olympic Dam
near Roxby Downs in the north of South Australia. The mine produces uranium, copper, gold
and silver and at its deepest is 720 metres below the surface. Mr Felton was employed to work
in the mine.
[3] Mr Felton commenced employment approximately 6 years ago and was employed
until 2 October 2014. At the time of the applicant’s termination he was employed as an
underground truck driver and this required him to operate diesel trucks in the underground
mine.
[4] Mr Felton was terminated on the basis of his repeated refusal to follow a direction to
present to work clean-shaven in order to allow a respirator fit test to be completed. This
direction was given in the context of a clean-shaven policy that had been in existence for
some years but was being comprehensively applied to the underground operations during
2014.
[2015] FWC 1838
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 1838
2
[5] The clean-shaven policy was adopted in the context of the need to wear appropriate
Personal Protective Equipment (PPE), being Respirator Protective Equipment (RPE) - face
masks or respirators. This need arises due to the nature of the mining and processing
environment and in particular potential exposure to Crystalline Silica and other dusts, diesel
particulate matter (DPM) and radon decay products. For some workers, exposure to ammonia
gas is also an issue.
[6] The extended application of the clean-shaven policy arose from advice received by
BHP Billiton in 2013 that DPM was a human carcinogen and that further control measures
should be adopted to limit exposure.
[7] Mr Felton has for many years had a goatee beard and a moustache. There is no dispute
that this is not consistent with the clean-shaven policy and would prevent the kind of
respirator intended for supply by BHP Billiton to Mr Felton from working appropriately.
[8] Mr Felton had at some stage previously worn a different form of respirator known as
an Airstream helmet, which operates on the basis of positive air pressure and has a different
fit to the head (known as a Positive Air Pressure Respirator - PAPR). When used by
Mr Felton, he rolled up the goatee inside of the facemask. There is no evidence that this
approach was ever properly fit tested and there is some conjecture about whether the PAPR
was technically effective when used by Mr Felton in that manner. In the lead up to his
dismissal, Mr Felton offered to supply such a helmet at his own expense as alternative RPE.
[9] Mr Felton contends that his dismissal was unfair on two principal grounds. Firstly, that
the clean-shaven policy and the related instruction was not valid in light of the circumstances
including the statutory requirements for consultation on such matters. Secondly, that there
was not a causal connection between the policy and the alleged work health and safety (WHS)
risk, in light of the offer to purchase the more advanced protection afforded by the Airstream
helmet.
[10] On that basis, Mr Felton contends that there was not a valid reason for dismissal.
Further, he contends that in light of his service and employment record, the dismissal was
harsh.
[11] BHP Billiton contends that it had a valid reason for dismissing the applicant and that
the termination was not harsh, unjust or unreasonable. That is, the applicant’s repeated refusal
to follow lawful and reasonable directions of both his supervisor and superintendent to attend
for work clean-shaven. Furthermore, the respondent contends that it is the employer’s
obligation to supply and maintain appropriate PPE and the option proposed by Mr Felton was
unworkable and inappropriate.
[12] There is no dispute that Mr Felton was protected from unfair dismissal within the
meaning of s.382 of the FW Act.
[13] The applicant does not dispute the process followed by BHP Billiton in the lead up to
the dismissal and accepts that procedural fairness was afforded to him in terms of the relevant
statutory considerations.
[2015] FWC 1838
3
[14] What is in dispute is whether the direction to comply with the clean-shaven policy was
a lawful and reasonable instruction. More directly, this application requires consideration as
to whether the dismissal was harsh, unjust or unreasonable, given the circumstances of
Mr Felton, his proposal to purchase an alternative item of RPE, and the circumstances at the
workplace generally.
2. The evidence
[15] Mr Felton provided a witness statement and gave evidence in the matter. In addition,
he also relied upon evidence from Mr Richard Wormald - OHS Coordinator, Australian
Manufacturing Workers’ Union (AMWU).
[16] BHP Billiton provided witness statements and led evidence from the following
employees:
Mr Mark Dillon - Load and Haul Superintendent;
Mr Christopher Platt - Manager Employee Relations; and
Mr Chuong Dinh Pham - Superintendent Radiation and Occupational Hygiene
Improvement.
[17] The applicant did not attempt to mislead the Commission on the facts and I find that
he was an honest and credible witness.
[18] Mr Wormald was an expert witness and has sound technical knowledge of workplace
hazards and control measures and the operation of the relevant WHS Act. However, as
expected given his role, he did not have detailed knowledge of the particular workplace
concerned here. He also tended to advocate for the applicant.
[19] Mr Dillon tended to be somewhat defensive in relation to the clean-shaven policy and
was not involved in its development. He was however in my view an honest witness and gave
his perspective frankly.
[20] Mr Platt’s evidence was clear, precise and given openly. I accept it.
[21] Mr Pham was an excellent witness who demonstrated sound technical and practical
knowledge and made concessions on issues where appropriate. His evidence was also
objective and I accept it without hesitation.
[22] With the exception of Mr Pham, some elements of the evidence provided by each of
the witnesses tended to be their subjective views about the reasonableness of various aspects.
I have considered that evidence in the context of their respective roles and experience but
noting that in the end it is the Commission’s objective views on those matters of judgement
that count.
[23] The parties referred to the Australian/New Zealand Standard AS/NZS 1715:2009 titled
the Selection, use and maintenance of protective equipment (the A/NZ Standard). Further, the
use of the Airstream Underground Mining Helmet that is utilised by BHP Billiton in some
areas was helpfully demonstrated by Mr Wormald and various pieces of product information
associated with the Airstream helmet were tendered.
[2015] FWC 1838
4
3. The circumstances of Mr Felton’s employment and the events
leading to his dismissal
[24] I will separately deal with two particular aspects that emerge from the facts and the
considerations arising in this matter. These concern the process underpinning the clean-
shaven policy and the issues arising from Mr Felton’s offer to purpose the alternative RPE.
However, it is appropriate to initially set the broader factual context based upon the evidence
before the Commission.
[25] BHP Billiton operations at Olympic Dam operate under strict regulatory control given
that the ore products mined and processed include uranium. These controls include having a
controlled “dirty” zone where employees, their work clothing, equipment and PPE must
remain until cleaned. In terms of equipment and PPE leaving the dirty zone, this must be
screened for radiation before that can occur.
[26] The nature of the operations, including the underground nature of the mine and the
potential hazards in the workplace, mean that all employees must have access to appropriate
PPE that includes respirators that will work effectively when required. BHP Billiton also has
advanced and extensive air extraction systems and other control measures that operate to
reduce or eliminate exposure to potentially harmful dusts and gasses.
[27] BHP Billiton employ, either directly or via agency contractors, approximately 2,700
employees at its Olympic Dam site. Approximately, 990 of these employees are directly
engaged in the underground mining operation and all persons working or visiting the mining,
processing and smelter refinery areas are required to comply with the PPE requirements
including the respirator provisions.
[28] Mr Felton was employed with the respondent for approximately six years. At the time
of his commencement and dismissal, he had a goatee beard of about 100mm in length and a
moustache. Mr Felton has had the goatee and moustache since he was 19 years of age and
considers it to be a personal attribute.
[29] Mr Felton entered into a written contract of employment and at the time of his
dismissal this relevantly included a requirement to familiarise himself and comply with all
workplace policies, rules, practices and procedures as amended from time to time and to
comply with all lawful directions.1 A specific requirement was also provided in relation to
health and safety policies, and in relation to PPE, the contract provided that “It is a
requirement that you wear and maintain personal protective clothing and safety equipment as
required by the Company”.
[30] To the extent that the PPE requirement included the need to maintain the clothing and
equipment, this would reasonably include taking care of such but would not in my view
extend to actually servicing and maintaining the same. I note that this was the understanding
held by Mr Felton.
[31] Mr Felton worked as an underground truck driver and he generally performed his
work in an air-conditioned pressurised cab with appropriate filtration. The applicant’s role did
however require him to regularly get out of the truck when underground. This included
circumstances where he was required to check the work area and his vehicle, water down dirt
[2015] FWC 1838
5
or assist other employees involved in the underground “bogging” work being undertaken in
the new area of the mine being developed. It was primarily in this context that he was
required to have access to appropriate respirator and a self-rescuer, which is a short term
respiratory aid carried by all underground employees.
[32] BHP Billiton has had a Respiratory Protection Policy (RPP) for some years. In July
2010, the surface production area of the Olympic Dam operations adopted a clean-shaven
policy2 and this was extended in December of that year to include the Laboratory areas.3
[33] In the November 2012 version, the RPP4 applied to all areas at Olympic Dam
including the mining operations and relevantly stated as follows:
“5.1.7 Respirator Fit
All respirators except PAPR’s rely on a good seal between the face and the contact
surface of the respirator to prevent inward leakage of contaminants. Facial hair lying
between the sealing surface of a respirator face-piece and the wearer’s skin will
prevent a good seal. Consequently all people requiring respiratory protection from
non-PAPR’s at Olympic Dam must be clean shaven daily. For additional details refer
AS/NZS1715 Selection, Use and Maintenance of Respiratory Protection Devices.
Clean Shaven is interpreted for Olympic Dam as:
The Complete sealing surface of the respirator mask should be in contact with
the wearer’s skin, stubble growth will interfere with the seal of the face piece
and make wearers should shave daily.
No one who requires respiratory protection shall wear Respiratory Protection
Equipment over a beard.
Moustaches shall not extend past a line drawn through the top of the tragion
(the notch in the cartilage of the ear just above and immediately in front of the
ear hole) and the canthus (corner of the eye)
All forms of jewellery that may interfere with the facial seal should not be
worn while using respirators.
A “field fit check” (not to be confused with a “Fit Test”) must also be conducted each
time a respirator is fitted and gives an indication to the wearer that the respirator is
sealing as required. It involves the wearer covering the inhalation ports on half or full
face respirator and inhaling gently. For a disposable “dust mask” the field fit check is
performed by cupping both hands over the respirator and inhaling. In all cases the
respirator should be drawn to the face, indicating no inward leakage is occurring. Fit
checking should be undertaken on a daily basis by is not a substitute for periodic fit
testing.”
[34] In effect, this policy required all people at the Olympic Dam operations requiring
respiratory protection, other than those utilising the PAPR helmets (Airstream helmets or
similar), to be clean shaven as described.
[35] During 2013, BHP Billiton became aware that DPM had been categorised as a human
carcinogen and given the extensive use of diesel trucks in the operations a review of the RPE
was conducted. I will deal with the issues associated with the development, adoption and roll
[2015] FWC 1838
6
out of the full clean-shaven policy in due course. It is presently sufficient to note that the
Mine Leadership Team determined that it would implement a clean-shaven requirement to the
entire mining workforce and that this would be progressively rolled out to all employees,
including those who might use a PAPR, commencing from January 2014. This meant that by
31 December 2014, all employees were required to be clean-shaven for fit testing, and once fit
tested, to carry the required RPE supplied and be clean-shaven.
[36] The RPE and its clean-shaven roll out operated on the basis that a risk assessment
would be made in relation to each of the categories of employees according to the nature of
their work and their exposure to risk. A hierarchy of respirators is provided by BHP Billiton
ranging from disposable respirators through to reusable half and full face respirators. The
Airstream helmets are also contemplated where the nature of the work requires that form of
respirator.
[37] In addition to risk exposure, the type of respirator was determined according to a fit
test that took account of facial features, such as high cheek bones. The type of respirator
suitable for the work undertaken by Mr Felton was a disposable respirator or potentially a half
face model but not an Airstream helmet. Leaving the clean-shaven aspect aside, it is clear that
in the normal course the Airstream is considered under the policy to be appropriate where the
wearer is subject to spray or similar hazards where the inbuilt visor provides enhanced
physical protection. In the normal course, the Airstream helmet is not appropriate or necessary
for an employee in the circumstances of Mr Felton. I also note that the clean-shaven policy
now applied by BHP Billiton also requires all employees, including those wearing the
Airstream helmet or other PAPR, to be clean-shaven within the meaning of that policy.
[38] After the roll out of the full clean-shaven requirement to all mining staff, BHP Billiton
commenced respirator fit testing for all employees. The purpose of the fit testing was to
ensure that all wearers of RPE were provided with a respirator which is most suitable to not
only their facial characteristics but also to the type of atmospheric contaminants to which they
may be exposed. BHP Billiton assumed all costs for the RPE and the responsibility for its
maintenance and service.
[39] In mid-September 2014, Mr Felton and the crew he works with were notified that they
were scheduled to undergo a respirator fit test on 22 September 2014. The employees were
also informed that they were required to present clean-shaven for the testing.
[40] On 22 September 2014, Mr Felton presented to work unshaven with the result that he
could not be fit tested for the intended respirators. Mr Felton was instructed that he needed to
be clean-shaven and he advised that he would not do so.
[41] Mr Felton was again requested to present for work clean-shaven on 23 September
2014. He again presented unshaven on that day.
[42] On 23 September 2014, BHP Billiton convened a meeting between Mr Felton,
Mr Dillon and a senior human resource adviser. Mr Felton was again directed to shave to
permit the fit test to be conducted and he refused. Mr Felton was informed that his failure to
follow the direct instruction to present clean-shaven was a breach of his contract of
employment and that any continued refusal could result in disciplinary action, including the
possible termination of his employment.
[2015] FWC 1838
7
[43] Mr Felton was then again requested to present clean-shaven and he again refused,
stating that his beard was a physical attribute that he would not change. At this stage,
Mr Felton was stood down on full pay and sent off-site.
[44] On 24 September 2014, Mr Felton met with his superintendent, Mark Dillon, and a
Human Resources representative John Langley. Mr Felton was unshaven and he was issued
with a final written warning5 which included that:
“Any failure to meet the obligations of your contract of employment, the requirements
of your management plan, or the failure to follow Company policies and procedures,
may result in the termination of your employment.
... ...”
[45] During the 24 September meeting, the applicant offered to purchase, at his own
expense, an Airstream helmet instead of shaving off his beard. Mr Felton was informed to the
effect that “this is not how we do things”. I also find that Mr Dillon and/or Mr Langley
explained that BHP Billiton was responsible for supplying, servicing and maintaining the
RPE and that this was why employees could not bring their own RPE onto site.
[46] The applicant was then directed to present clean-shaven at the following shift, which
was the evening of 24 September 2014. The applicant presented unshaven. Also on that day
when Mr Dillon became aware that Mr Felton had not complied with the direction, he had an
informal discussion with Mr Felton and advised that if he continued to refuse to attend clean-
shaven, he was at risk of being terminated. Mr Felton said words to the effect that he wanted
to get it over and done with.
[47] On 25 September 2014, Mr Felton was informed during a meeting that he was in
serious breach of his obligations to the employer and that he would be required to show cause
as to why his employment should not be terminated by 30 September 2014. A letter
confirming the discussion was issued on the same date.
[48] On 29 September 2014, the applicant responded to the show cause request and stated
as follows6:
“To whom it may concern
Dear Sir/Madam
My facial hair is my personal attribute, it is who I am and my liberty of right.
Also I was not told one on one on the 14/9/14 nor 16/9/14 as stated by Paul Inglis shift
supervisor that I had to shave for fit test. I WAS only told at 4.30am on the 23/9/14.
Yours faithfully
Jim Felton.”
[49] On 2 October 2014, Mr Felton was advised that his employment would be terminated.
This was confirmed in writing on that day and following a recounting of the history of the
matter the letter advised as follows7:
[2015] FWC 1838
8
“... ...
These incidents represent a serious breach of our Code of Conduct and your Contract
of Employment.
We have considered your response to the allegations. We have also considered
alternative options and any other mitigating circumstances in arriving at our decision.
Your previous work history and length of service have been taken into account.
The company has determined to terminate your contract of employment upon notice.
You will not be required to work out your notice.
... ...”
[50] At the time of the full application of the clean-shaven policy, many of the employees
working underground had facial hair. In the Load and Haul section in which Mr Felton was
employed, about 70 percent of the 200 employees were not clean-shaven and had facial hair
of some description that required removal under the policy.
[51] Charity fund raising activities were promoted across the site in relation to a number of
long standing beard wearers who shaved in response to the full clean-shaven policy roll out.
[52] All employees at the BHP Billiton operations at the Olympic Dam site, with the
exception of Mr Felton, have complied with the clean-shaven policy.
4. The process associated with the introduction of the clean-shaven
policy
[53] Principally arising from the witness statement of Mr Wormald that was provided in the
immediate lead up to the hearing of this matter, Mr Felton contended during the course of the
hearing that the clean-shaven policy was not a valid or bona fide policy in that it may not have
been developed and implemented in accordance with the relevant work health and safety
(WHS) laws. This, in turn, had two related elements; namely, that the policy may not have
been the subject of appropriate consultation as required by s.47, s.48 and s.49 of the Work
Health and Safety Act 2012 (SA) (the WHS Act) and that the health and safety representatives
(HSRs) who may have been involved in the process, were not elected in accordance with s.61
of WHS Act.
[54] I also note that Mr Felton in his witness statement alleged that he had not been
consulted about the clean-shaven policy and that he had been informed by a health and safety
representative in early 2014 to the effect that BHP Billiton had not yet really consulted with
them.
[55] Mr Felton contends that as Mr Platt indicated (in his witness statement) that he had
organised the election of HSRs this may not be in accordance with the WHS Act which
requires that management become involved in HSR elections only if requested by the workers
concerned (s.61 of WHS Act).
[2015] FWC 1838
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[56] In relation to the duty to consult, Mr Felton asserts that there was no evidence that the
employees were consulted about the policy or its implementation. This, he argued, was not
consistent with the consultation requirements of the WHS Act (s.47, s.48 and s.49).
[57] BHP Billiton contends that the issue of compliance or otherwise with the WHS Act is
a matter for a Court to determine and should not be dealt with through a collateral attack in
this matter. Alternatively, the employer argues that it was necessary for Mr Felton to
introduce some prima facie evidence that the requirements had been met before any
responsibility was shifted to it to meet the challenge to the policy on that basis.
[58] BHP Billiton also contends that there was no foundation for the issues raised in
relation to the HSRs and noted that there were transitional arrangements associated with
HSRs and policies under the WHS Act. Further, the clean-shaven policy had been in existence
for some years and a decision was taken to progressively apply it in practice. This was not a
change in policy in terms of Mr Felton, rather it was a change in its application and this was
undertaken in consultation with the workforce.
[59] The high point for the applicant’s reservations about the HSR election was that
Mr Platt stated in his witness statement that he had responsibility for the provision of advice
on matters including the “election of WHS representatives”. There is no evidence about the
circumstances leading to Mr Platt being requested by the relevant management officer to act
as the returning officer for that election. There is evidence that Mr Platt was not responsible
for WHS matters generally and only played the role of a returning officer in the most recent
election of the HSRs at Olympic Dam. The WHS Act requires that the workers in a relevant
work group may determine how an election for the HSRs is to be conducted.8 I accept that
this is an important provision to protect the independence of HSRs. Further, that Act commits
the business or undertaking concerned to provide whatever assistance may reasonably be
required9 and it would appear that if the workers requested the employer to provide a
returning officer, this would fit into that category. For reasons outlined earlier, it is not
possible to make definitive findings on this aspect.
[60] I note also that the WHS Act at Item 18 of Schedule 6 Transitional Provisions
effectively preserved the appointments of any HSRs and HS Committees operating under the
former Act.
[61] There is no real foundation for the attack on the election of the HSRs in this matter
and it is almost entirely speculative. Further, for reasons that I will come to, the HSR issue on
its own would not provide a basis to consider that the clean-shaven policy was “unlawful” or
inappropriate as a foundation for the instructions at issue here.
[62] In terms of the policy itself, the evidence reveals as follows.
[63] The clean-shaven policy was implemented within BHP Billiton at Olympic Dam in
2010. It was however not consistently applied across all areas of the workplace. By late 2012,
the policy was already applicable to all employees who were required to wear the form of
RPE ordinarily assigned to employees in the position of Mr Felton.
[64] During 2013, a decision was made to apply the policy without exception including in
relation to employees who may wear Airstream helmets or similar PAPRs that operate on a
positive air basis. This was done in the context of an awareness about the dangers associated
[2015] FWC 1838
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with DPM and there is evidence that this followed a discussion within management in 2012
and/or early 2013 and consideration by the Mine Safety (MS) Committee in August 2013.
These discussions involved the DPM concerns, the clean-shaven policy and its full
application. The MS committee is made up of specialist advisors, management and employee
representatives.
[65] Having made that decision, the implementation process rolled out from January 2014
and concluded with the fit testing in relation to Mr Felton (and others in his team) in
September 2014. This included the provision of comprehensive information about the
implementation of the policy and the opportunity to raise questions or concerns about the
application of the policy.
[66] The WHS Act commenced operation in January 2013. It was preceded by the
Occupational, Health, Safety and Welfare Act 2006 (SA) (OHSW Act) and this applied at the
time of the development of the clean-shaven policy and the initial decision by management to
extend its full operation to the above ground operations.
[67] The OHSW Act contained consultation obligations10 however these were relatively
general in nature and primarily applied to policies relating to OHSW in the workplace.
[68] The WHS Act applied at the time that the MS committee dealt with the full
implementation of the clean-shaven policy to the mine site and during the roll out of those
changes.
[69] Sections 47, 48 and 49 of the WHS Act provide as follows:
“Division 2—Consultation with workers
47—Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is
reasonably practicable, consult, in accordance with this Division and
the regulations, with workers who carry out work for the business or
undertaking who are, or are likely to be, directly affected by a matter
relating to work health or safety.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2) If the person conducting the business or undertaking and the workers
have agreed to procedures for consultation, the consultation must be in
accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.
48—Nature of consultation
(1) Consultation under this Division requires—
(a) that relevant information about the matter is shared with
workers; and
[2015] FWC 1838
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(b) that workers be given a reasonable opportunity—
(i) to express their views and to raise work health or safety
issues in relation to the matter; and
(ii) to contribute to the decision-making process relating to
the matter; and
(c) that the views of workers are taken into account by the person
conducting the business or undertaking; and
(d) that the workers consulted are advised of the outcome of the
consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the
consultation must involve that representative.
49—When consultation is required
Consultation under this Division is required in relation to the following health
and safety matters:
(a) when identifying hazards and assessing risks to health and
safety arising from the work carried out or to be carried out by
the business or undertaking;
(b) when making decisions about ways to eliminate or minimise
those risks;
(c) when making decisions about the adequacy of facilities for the
welfare of workers;
(d) when proposing changes that may affect the health or safety of
workers;
(e) when making decisions about the procedures for—
(i) consulting with workers; or
(ii) resolving work health or safety issues at the workplace;
or
(iii) monitoring the health of workers; or
(iv) monitoring the conditions at any workplace under the
management or control of the person conducting the
business or undertaking; or
(v) providing information and training for workers; or
(f) when carrying out any other activity prescribed by the
regulations for the purposes of this section.”
[70] Accordingly, the WHS Act creates a duty, where reasonably practicable, to consult (in
certain defined circumstances) and relevantly provides that:
Consultation may be undertaken through agreed procedures provided those
procedures are consistent with the consultation requirements;
Consultation is defined and this includes the provision of information, the
reasonable opportunity for workers to express views, to contribute to the decision
making process and for those views to be genuinely taken into account and to be
advised of the outcomes in a timely manner; and
Where HSRs are in place, the consultation must include them.
[2015] FWC 1838
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[71] Further, consultation is required in relation to a number of defined circumstances
including when making decisions about ways to eliminate or minimise workplace risks, when
proposing changes that may affect the health or safety of workers, and providing information
and training for workers.
[72] There was a change in policy to require the full application of the clean-shaven
approach to all employees in the mine. That is, the decision to have the clean-shaven policy
apply also to those who had been using PAPR devices and to more rigorously implement
proper fit testing for all employees was a decision about ways to minimise or eliminate
workplace risks. Although Mr Felton was not in a role where he was normally required to
wear a PAPR device, he had done so in the past and the change in policy could be said to have
at least an indirect impact upon him.
[73] There is evidence that the full implementation of the policy was subject to discussions
through the MS committee in 2013 and this involved workers representatives. The WHS Act
was in force by that time and consultation through such a committee is capable of meeting the
consultation obligations of s.48 of the WHS Act. That is, it may have been the reasonably
practicable method (through the representatives) by which the information was provided to
the employees and the employees were given an opportunity to express views and to
contribute to the decisions under that Act. I note that in terms of HSRs, they were apparently
involved in the process through the MS committee and if they were properly elected (or had
their election preserved by the transitional provisions) this would meet those requirements. If
they were not properly elected, there would have been no legal obligation to consult them.
[74] The roll-out of the full policy itself may not be consultation in its own right. By that
time, it was not a proposal that was up for discussion and was not the opportunity to
contribute to the decision making process itself. Rather, it represented a decision that had
been made after consultation with the MS committee and was being broadly communicated
with an opportunity for workers to raise issues and questions throughout the process. This is
evident from the written material and the evidence of Mr Dillon, who was directly involved in
the roll out of the policy.
[75] Accordingly, in order to be satisfied that the revised application of the clean-shaven
policy was undertaken in a manner consistent with the WHS Act, it is likely that the process
involving the MS committee, or other consultative processes that have not yet been revealed
given the manner in which the issue arose, would need to have met the requirements of s.48 of
the WHS Act. There is evidence of a consultative process through the MS committee and the
inclusion of workers representatives in that context, however there is presently insufficient
evidence to make a definitive finding on this point.
[76] Prior to hearing final submissions I indicated that should I ultimately consider that the
issues associated with compliance or otherwise with the WHS Act (or its predecessor) were
sufficiently engaged and relevant to the determination of this matter, and if I considered that
natural justice required an opportunity for BHP Billiton to provide relevant evidence, I would
reconvene to provide that opportunity. The natural justice consideration leading to that point
arose due to the fact that the substantive compliance issues only arose following the provision
of the respondent’s materials and the nature of Mr Felton’s argument in that regard was
revealed during the course of the hearing.
[2015] FWC 1838
13
[77] Mr Felton conceded that there was insufficient evidence before the Commission to
make the finding sought by him in relation to the WHS Act compliance issue and advised that
he would not be opposed to re-opening the matter if the Commission considered that to be
appropriate.11 BHP Billiton contends that the issues were not sufficiently relevant and were
not properly engaged in this matter. Alternatively, if the Commission intended to further
consider the matters associated with this issue, the applicant should first provide prima facie
evidence that the relevant consultation process had not been followed.
[78] I do not consider that it is necessary or appropriate to finally determine the issue of
compliance with the WHS Act as part of this application. Those reasons include:
The issue of compliance or otherwise with the WHS Act is fundamentally a matter
for a Court of competent jurisdiction;
The role of the Commission is to apply the statutory considerations under s.387 of
the FW Act;
Whilst the reasonableness and legality of a policy are relevant matters to the
consideration of a valid reason, the potential failure to fully comply with the
consultation obligations in relation to the roll out of the full clean-shaven policy
would not of itself mean that the policy was illegal, invalid or irrelevant for present
purposes;
The clean-shaven policy has been in place and fully implemented for some time
now, there is no indication that the policy has been disputed more generally, and
the evidence is that all but one of the over 900 employees involved in the
underground mining operations have complied with the policy; and
It is possible to deal with this application without purporting to make any such
determination.
[79] I will say more in relation to the clean-shaven policy and its impact upon the valid
reason for dismissal as part of the consideration to follow.
5. Mr Felton’s offer to supply the alternative RPE
[80] During one of the early meetings as part of the disciplinary action, Mr Felton offered
to supply (at his own cost) an Airstream helmet for his use in the mine. This was rejected by
BHP Billiton management. The proposal was not raised again by Mr Felton including in the
context of the show cause process that immediately preceded the dismissal.
[81] Mr Felton contends that with the comprehensive ventilation system within the mine
and the nature of his role, there was a limited risk from exposure to gasses and the like. He
also relied upon access to his truck cabin, the emergency self-rescuer and the existence of
emergency refuge chambers within the mine in the unlikely event that his self-supplied
Airstream helmet failed.
[82] Mr Felton contends that in any event there would have been a better level of protection
afforded by the Airstream helmet. Further, he contends that he was not told why that option
was not considered to be appropriate and was not consulted in relation to the issues at the time
it was raised. He suggested during the course of the hearing that now that he is aware of the
apparent concerns of the employer, he has offered to provide a second air stream helmet as a
[2015] FWC 1838
14
back-up and would be prepared to pay BHP Billiton for any additional costs associated with
the maintenance of the helmets. He further suggested that this would also have enabled the
Airstream helmet to be fit tested in the context of his goatee beard.
[83] In what he described as the “control and command environment” at BHP Billion,
Mr Felton contends that his former employer did not genuinely consider any flexibility.
[84] Mr Felton contends that the provision of an Airstream helmet was a reasonable and
workable option and should have been fully considered and adopted as an alternative. He also
contended that this meant that there was not a causal connection between the policy and the
WHS considerations and this meant that a dismissal based upon non-compliance with that
policy was unfair.
[85] BHP Billiton contends that when Mr Felton raised the proposal to supply an Airstream
helmet he was given an explanation as to why that was not appropriate. Further, the evidence
is that when faced with that explanation, Mr Felton did not then further raise the option let
alone some of the additional steps now proposed in relation to the second helmet and payment
for the maintenance. Given that Mr Felton was on notice about the clean-shaven requirement
since January 2014, this was significant.
[86] BHP Billiton also contends that the Airstream helmet is not necessarily appropriate
and there was no evidence that an Airstream helmet would be appropriate in the
circumstances of Mr Felton with his goatee beard. The employer also argues that the
Airstream that is used by some employees at BHP Billiton are provided where the risk profile
of the workers warrants that approach however the Airstream helmet must be used with a
clean-shaven face as is now required of all employees who use the PAPR devices.
[87] BHP Billiton also argues that given the risks within the mine site, it was essential that
the clean-shaven policy be applied to all employees. The reasons for this include the capacity
for a clean-shaven worker to use the appropriate RPE that is being made available to workers
more generally (including in relation to emergencies where spare or shared RPE could be
used). Further, the capacity to have a uniform, equitable and enforceable PPE policy was said
by BHP Billiton to be a very important consideration.
[88] The A/NZ Standard is not called up by the Work Health and Safety Regulations 2012
(SA) (the WHS Regulations) but is an appropriate objective standard for present purposes and
is referenced in the clean-shaven policy.
[89] There are various references in the A/NZ Standard to the potential impact of beards
upon the effectiveness of RPE. These include:
“4.4.3.1 General
Facial fit is a prime factor in obtaining good protection when utilizing half or full face
piece RPE and needs to be taken into account in the selection of a RPE........RPE that
maintains a positive pressure in the face piece at all times provide a higher degree of
protection than can be achieved with negative pressure types. Positive pressure RPE
may diminish the effect of poor facial fit but will not obviate the effect of leakage
caused by facial hair (see Clause 8.3). .....At high rates of work, beards and other
facial hair may cause inward leakage even when using positive pressure RPE.
[2015] FWC 1838
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...
8.3 FACIAL HAIR IN RPE FITTING
Facial hair lying between the sealing surface of a RPE face piece and the wearer’s skin
will prevent a good seal. Beards, moustaches and sideburns prevent satisfactory
sealing. Long hair may also interfere with the operation of exhalation valves. The
sealing problem is especially critical when close fitting face pieces are used. The
reduction in pressure developed in the breathing zone of these respirators during
inhalation may lead to leakage of contaminant into the face piece where there is a poor
seal. Therefore, individuals who have stubble (even a few days’ growth will cause
excessive leakage of contaminant), a moustache, sideburns, or a beard which passes
between the skin and the sealing surface should not wear a respirator which requires a
facial seal.”
[90] In addition, Section 8 Typical RPE Fit Tests and Checks and Appendix B Facial Seal
of Respirators of AS 1715 also appears to emphasise that it is the impact of the facial hair
upon the seal that matters. A beard with a normal full or half face RPE would not be
consistent with the standard however the impact of a beard with an Airstream helmet or other
RPE utilising positive pressure (PAPR) may depend upon the extent of the facial hair and the
circumstances under which the PAPR is being used.
[91] It appears that the A/NZ standard does not include any absolute facial hair restrictions
for loose fitting types of headgear however the extent of facial hair may still be an issue where
the face-seal contacts the wearer’s face. For hoods and helmets with an inner neck collar or an
inner shroud that form a partial seal in the neck region of the wearer, beards and facial hair are
less of an issue provided that it does not extend into the sealing surface area of the hood or
helmet. The manufacturers of the Airstream helmet warn that certain types of beard types may
impact upon the appropriate operation of the helmet.12
[92] The A/NZ standard is also designed to establish standards across industry generally.
As outlined in this decision, there are particular hazards and circumstances at the Olympic
Dam site that bear upon the reasonableness of the clean-shaven policy and the instruction
given to Mr Felton at this workplace.
[93] Regulation 44 of the WHS regulations, in effect, requires the Person Conducting a
Business or Undertaking (PCBU) to provide PPE. Moreover, the PCBU must select the type
of PPE and ensure that it is suitable, having regard to the nature of the work and any hazard
associated with the work. It is also the PCBU’s duty to ensure that the PPE is of a suitable
size and fit and “reasonably comfortable” for the worker who is to use or wear it.
Regulation 46 places a duty on the worker (as far as the worker is reasonably able) to use or
wear the equipment in accordance with any information, training or reasonable instruction
given by the PCBU.
[94] The decision to implement and apply the clean-shaven policy was in part a business
management decision. In that light, the following principle as stated in the Australian
Federated Union of Locomotive Enginemen v State Rail Authority (NSW)13 (the XPT Case) is
relevant:
“It seems to us that the proper test to be applied and which has been applied for many
years by the Commission is for the Commission to examine all the facts and not to
[2015] FWC 1838
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interfere with the right of an employer to manage his own business unless he is seeking
from the employees something which is unjust or unreasonable. The test of injustice or
unreasonableness would embrace matters of safety and health because a requirement
by an employer for an employee to perform work which was unsafe or might damage
the health of the employee would be both unjust and unreasonable.”14
[95] However, that principle is not an immutable rule applicable to any employer decision
and other considerations must also be taken into account.15 These include, in this case, the
circumstances of, and impact upon Mr Felton, and potentially the process by which the policy
was developed and implemented given the relevance of the WHS Act.
[96] It is evident that there are real hazards in this workplace, including potential exposure
to DPM, and other issues arising from the fact that (amongst other minerals) the BHP Billiton
mine at Olympic Dam is a uranium mine. It is also evident that the clean-shaven policy is in
general terms, an appropriate control strategy and is directed at genuine WHS issues in this
workplace. I also note that the extent of risk is relevant to the steps reasonably required by the
employer under WHS law.16 However, the attempts by Mr Felton’s representative to suggest
that the extent of risk was small, and that the full application of the clean-shaven policy was
not the genuine reason for dismissal, is not supported by the evidence or the circumstances
under which the policy was developed and implemented.
[97] The risk based approach to the selection of the RPE and the fit testing process adopted
by BHP Billiton would appear to be consistent with WHS Regulation 44 outlined above.
[98] There are also genuine issues associated with the desirability of the consistent and
uniform application of PPE policies. These include the capacity for the employer to provide
PPE that meets its requirements and can be readily verified. Further, the maintenance and
updating of that equipment by the employer is an important part of its WHS duties.
[99] The proposal, also advanced by Mr Felton during the hearing, that he would
effectively underwrite the maintenance of his own Airstream helmets by BHP Billiton, was
not raised in the lead up to the dismissal and was, in any event, not fully articulated or thought
through.
[100] As a general rule, the capacity for employees to supply their own PPE is not a
workable and appropriate approach in a workplace of the kind conducted by BHP Billiton at
Olympic Dam. It is a large and complex workplace with genuine hazards and the approach
contended by Mr Felton had the real capacity to undermine the integrity of the policy. In that
regard, I accept that the concerns expressed by Mr Platt in his evidence are genuine and well
founded given the nature of the Olympic Dam operations.
[101] If BHP Billiton were to permit an employee to avoid the clean-shaven policy based
upon personal appearance preference, then in my view, this is likely to lead to flow-on issues
and claims for other “exemptions”. Although the proposal made by Mr Felton potentially
involved a significant monetary contribution and this could tend to limit its attractiveness, the
capacity for Mr Felton to use the Airstream helmet when it is not the RPE that is relevant to
his job role would have the tendency to encourage further claims for “exemption”.
[102] Further, if all workers are clean-shaven within the meaning of the policy, a wider
range of options are available, both generally, and in the case of emergencies. That is, the
[2015] FWC 1838
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capacity to use generally available RPE is a further significant factor supporting the full
application of the clean-shaven policy in this particular workplace.
[103] In addition, the capacity to use the Airstream helmet with any significant facial hair is
by itself problematic and would require regular fit testing.
[104] I note that an employee with medical issues affecting the choice of RPE may need to
be dealt with differently. Conceivably an argument could be made for an exemption to be
based upon genuine health or discrimination issues. However, such an approach would not in
my view have the same capacity to undermine the clean-shaven policy within the workplace.
[105] In this case, Mr Felton clearly has a strong dedication to his beard and a desire to
retain his identity to that end. This is evident to the point of risking his job and offering to pay
for expensive alternative RPE. Based upon the evidence, there is no identified medical or
physiological reason underpinning this position. Further, despite the best efforts of his
representative to suggest otherwise, there is also no evidence that this position is otherwise
justified on psychiatric grounds.
6. Was Mr Felton’s dismissal unfair within the meaning of the FW
Act?
[106] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[107] Mr Felton was dismissed, the employer is not a small business within the meaning of
the FW Act, and the concept of a genuine redundancy is not relevant here.
[108] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or
unreasonable.
[109] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
[2015] FWC 1838
18
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal;
and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory
performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely
to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[110] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature
of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of
considerations that must, where relevant, be weighed up in totality.
[111] It is convenient therefore to use the various provisions of s.387, with reference to the
relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to
Mr Felton’s capacity or conduct (including its effect on the safety and welfare of other
employees)
[112] Valid in this context is generally considered to be whether there was a sound,
defensible or well founded reason for the dismissal. Further, in considering whether a reason
is valid, the requirement should be applied in the practical sphere of the relationship between
an employer and an employee where each has rights, privileges, duties and obligations
conferred and imposed on them. That is, the provisions must be applied in a practical,
commonsense way to ensure that the employer and employee are each treated fairly.17
[113] Mr Felton declined on a number of occasions to attend for work in a clean-shaven
state despite multiple directions to do so. Whether this provides a valid reason for dismissal
depends upon a variety of considerations including the reasonableness of the clean-shaven
policy that underpinned it and the earlier offer made by Mr Felton to supply the PAPR. I have
dealt with the substance of those issues earlier in this decision.
[114] It has been held that the failure to comply with an unreasonable direction does not
provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett
& Co Pty Ltd t/as Alba Industries18 Beazley J stated:
"In determining whether a refusal to carry out the lawful and reasonable directions of an
employer constitutes a valid reason for termination, it is necessary to have regard to all
the circumstances, including the nature and degree of the employee's conduct." [Cf:
Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall
J)]19
[2015] FWC 1838
19
[115] Conversely the failure to follow a lawful instruction which was reasonable in the
circumstances may provide an employer with a valid reason to terminate an employee's
employment: Cox v South Australian Meat Corporation.20
[116] In Woolworths Limited (t/as Safeway) v Cameron Brown21 a Full Bench of the AIRC,
after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach
of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,22 considered when
failure to abide by a policy of an employer would amount to a valid reason for termination of
employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to
obey a lawful and reasonable direction of the employer sufficient to justify dismissal at
common law will amount to a valid reason for termination of employment within the
meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-
founded.” A failure to comply with a direction to do or refrain from doing something
in compliance with an employer’s policy will not provide a valid reason for
termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or
matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.”23
[117] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,24 Deegan C
determined that:
“Not every breach of a policy will provide a valid reason for termination of
employment. However in circumstances where the policy is both lawful and
reasonable and an employer has stressed the importance of the particular policy to the
business and made it clear to employees that any breach is likely to result in
termination of employment, then an employee who knowingly breaches that policy
will have difficulty making out an argument that there is no valid reason for the
termination.” 25
[118] In my view, the instruction to Mr Felton to attend for work clean-shaven was a lawful
and reasonable direction. Even if there were some deficiencies in the consultation surrounding
the application of the full clean-shaven policy (and I make no conclusive finding about that),
the policy itself is in my view a reasonable and appropriate one given the circumstances of the
operations of BHP Billiton and the potential hazards in the mine. There are significant WHS
Act obligations upon it as the employer, and given technical advice about the hazards and the
implications of regulation 44 and the A/NZ standard, the instruction (and the policy) was an
objectively reasonable and proportionate response to the circumstances.
[119] There is an impact upon individual rights and preferences in the adoption of a clean-
shaven policy of the kind in operation at BHP Billiton. However, in light of the actual
hazards, the nature and size of the mine and its workforce, and the impact of the relevant
WHS obligations, the interests of the protection of safety and health become more important
[2015] FWC 1838
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than personal preference and a desire to obtain an appearance, even one held so strongly by
Mr Felton. Importantly, the full application of the policy and the measures that BHP Billiton
have gone to implement the clean-shaven policy all reinforce the importance of the policy in
objective terms.
[120] The proposal made by Mr Felton to purchase his own PAPR is also an important
consideration. The context and issues surrounding that proposal have been discussed earlier in
this decision. I find that it was a genuine offer however it was not fully thought through at the
time and Mr Felton did not persist with the proposition. The use of an Airstream helmet or
other PAPR could potentially provide an alternative, however whether it would provide
adequate or better protection would depend upon regular fit testing. Further, there are
practical and legal issues associated with the proposed provision of the PAPR by Mr Felton
and any exception to the clean-shaven policy of that kind would in my view have the real
tendency to undermine the efficacy of that policy more generally.
[121] The instruction given to Mr Felton was also in my view compatible with the obligation
of the parties under regulations 44 and 46 of the WHS regulations.
[122] There was no position at BHP Billiton at Olympic Dam where an employee such as
Mr Felton could be engaged without the need to comply with the clean-shaven policy.
[123] I am satisfied that the requirement to comply with the clean-shaven policy was not
unreasonable, despite Mr Felton’s initial alternative proposal and the options that may have
arisen from that approach.
[124] In all of the circumstances, I am satisfied that there was a valid reason for dismissal
related to Mr Felton’s capacity or conduct, including its effect on the safety and welfare of
other employees.
Section 387(b) – whether Mr Felton was notified of the reasons for dismissal
[125] This consideration requires the Commission to assess whether the applicant concerned
was relevantly advised of the reasons leading to the dismissal before that decision was
taken.26
[126] The evident purpose of this consideration is that notification of the valid reason to
terminate must be given to the employee before the decision to terminate the employee is
made and the notification needs to be in explicit and plain and clear terms.
[127] In this case, there is no question that Mr Felton was notified of the reasons as required.
Section 387(c) – whether Mr Felton was given an opportunity to respond to any reason
related to his capacity or conduct
[128] In this case, the dismissal concerns Mr Felton’s conduct in refusing to comply with the
direction to attend clean shaven.
[129] The reason for dismissal was identified and Mr Felton was given a more than
reasonable opportunity to respond to the concerns.
[2015] FWC 1838
21
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Felton a
support person
[130] There was no refusal to permit Mr Felton to have a support person.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Felton –
whether he has been warned about that unsatisfactory performance before the
dismissal.
[131] This consideration relates to performance of the job. Performance in this context
includes the employee’s capacity to do the work, and the diligence and care taken with that
work.27
[132] To the extent that not shaving could be said to relate to the performance of the job,
Mr Felton was expressly warned that a failure of attend clean-shaven could lead to his
dismissal.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal.
Section 387(g) – the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal.
[133] BHP Billiton is a large employer and has dedicated human resources staff. The
applicant has not taken any issue with the disciplinary procedures followed by the employer
directly related to the dismissal.
Section 387(h) - other matters considered to be relevant
[134] Amongst other considerations, the Commission should consider the impact of the
dismissal upon the applicant given all of the circumstances.
[135] Mr Felton was a relatively long serving employee and there is no evidence of any
performance or conduct issues other than those directly leading to the dismissal. The impact
of the dismissal upon Mr Felton is significant in that he has lost a relatively high paying
position in a climate where such employment is increasingly difficult to obtain.
[136] However, Mr Felton made a deliberate and well informed decision not to comply with
the policy. It was his right to maintain his appearance however this was in conflict with a
reasonable and lawful direction and for reasons outlined above, made future employment for
him at BHP Billiton at Olympic Dam untenable.
Conclusion on nature of dismissal
[137] On balance, and having weighed each of the considerations in s.387 of the FW Act, I
consider that Mr Felton’s dismissal was not harsh, unjust or unreasonable. As such, it was not
unfair within the meaning of the FW Act.
[2015] FWC 1838
22
5. Conclusions and orders
[138] I find that Mr Felton’s dismissal was not unfair.
[139] As a result, the unfair dismissal application must be dismissed and an order28 to that
end is being issued in conjunction with this decision.
Appearances:
T Hardie with R Wormald, both of the AMWU, for Mr Felton.
R Wade, of Ashurst Australia with permission, with C Platt for BHP Billiton Pty Ltd.
Hearing details:
2015
Adelaide
March 18 and 19.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562106
1 Tab 1 of exhibit R1.
2 Document 14 of exhibit R1.
3 Document 15 of exhibit R1.
4 Document 3 of exhibit R1.
5 Exhibit R3
6 Document 11 of exhibit R1.
7 Document 12 of exhibit R1.
8 Section 61 of the WHS Act.
9 Section 61(4) of the WHS Act.
10 Section 20 of the OHS Act.
11 Transcript at 3.41pm on 19 March 2015.
12 Exhibit A6.
13 (1984) 295 CAR 188.
14 (1984) 295 CAR 188 at 191.
THE FAIR WORK THE COMMISSIONER NOISS THE SEAL
[2015] FWC 1838
23
15 See Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and
Energy Union [2015] FWCFB 1889.
16 Section 19 WHS Act as an example.
17 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR
458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A
Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
18 [1995] IRCA 499 (14 September 1995).
19 See also Schreier v Austal Ships Pty Ltd, Print N9636.
20 [1995] IRCA 287 (13 June 1995) per von Doussa J.
21 PR963023 (26 September 2005) (footnotes excluded).
22 PR928970 (19 March 2003), at [14].
23 Woolworths v Brown at [34].
24 [2009] AIRC 893 (16 October 2009).
25 Lion Nathan at [54].
26 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
27 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
28 PR566615.
