Today’s correspondence takes us back to the question of beards and face masks – see Facemasks, beards and COVID-19 (March 26, 2020). That post was about Queensland ambulance whereas today’s is about NSW Ambulance. My correspondent says:

A solution, for masks with beards, has been approved by the Clinical Excellence Commission and is now outlined in their manual. In addition, NSW Ambulance has a procedure for covering beards within their operating procedures. As a result, any NSW Ambulance argument that shaving is “related to the job requirements” is certainly questionable. 

Below are extracts from both documents.

Operating Procedure PRO2023-10 ORDER OF DRESS UNIFORM (INTERIM) states the following;

Shaving

  • Staff must be clean shaven at the commencement of every shift.
  • Facial hair interferes with the integrity of an adequate seal to complete a Respiratory Fit Check (RFT) on a respiratory face mask. (Reference: Clinical Excellence Commission; Respiratory Protection Program, March 2021) 
  • Staff with exemption from removing facial hair due to a medical condition or religious observance can use an approved beard covering technique, as outlined at PRO2022-002 Beard Covering Technique Operating Procedure. (Reference: Clinical Excellence Commission; Respiratory Protection Program Manual, December 2021)

Clinical Excellence Commission; Respiratory Protection Program Manual states:

  • Health Workers who are unable to remove facial hair to wear a tight-fitting respirator due to medical reasons, psychological needs/reasons, cultural or religious observance should follow directions in Appendix 4A: Use of respiratory protective device with beard cover technique.

Do the requirements for NSW Ambulance employees to shave their faces cross any Fair Work boundaries? Does the act of allowing some individuals an exception to removing facial hair but not others constitute discrimination?

An employee is required to comply with the lawful and reasonable directions of an employer.  Under the Work Health and Safety Act 2011 (NSW) a worker is required to take reasonable care of their own safety, comply with reasonable instructions given so that the Person Conducting the Business or Undertaking (the PCBU) can meet their obligations under the Act and to follow any reasonable WHS policy (s 28).  They are also required to wear provided PPE and to use it as instructed (Work Health and Safety Regulation 2017 (NSW) r 46).

To discriminate is to make choices; to ‘recognize a distinction; differentiate’.  Distinguishing between people is only unlawful is the choice or distinction is made on one of the prohibited grounds – race (which includes ‘colour, nationality, descent and ethnic, ethno-religious or national origin’), sex, transgender grounds, marital or domestic status, disability, carer responsibilities, homosexuality and age (Anti-Discrimination Act 1977 (NSW)).  

Discrimination on the grounds of ‘ethno-religious origin’ is not the same as discrimination on the grounds of religion (see Margaret Thornton and Trish Luker, ‘The Spectral Ground: Religious Belief Discrimination’ (2009) 9 Macquarie Law Journal 71-91).  Thornton and Luker says

While the term ‘ethnic origin’ is included as one of the cognate terms under ‘race’ in all legislation, ‘ethno-religious origin’ is specifically identified only in NSW and Tasmania and has been a contested and ‘ad hoc category’. Sikhs and Jews have been found to constitute ethno-religious groups, but the situation in relation to Muslims is less clear…

The inclusion of ‘ethnoreligious origin’ as a term recognised the function of religion as a signifier of race. Religion articulated as belief or theology may be incomprehensible to law but when it is understood as a characteristic of race or ethnicity, this facilitates identification because it is marked in difference…

I’m not going to get into comparative religious studies, and recognising that my source (Claudio Sorrentino ‘Hair, symbolism, Religion and Laser Hair Removal – What does it all mean’ Body Details True Laser Centres Blog,  20 October 2023) is not authoritative, I will accept, for the sake of the argument, that the following is true:

Other religions mandate the presence of hair and consider it disrespectful to God or their higher power to remove or alter it. These religions include Orthodox Judaism, Rastafarianism and Sikhism. These religions prohibit haircuts and the removal of facial hair as they believe hair to be a gift from God.

Other branches of Judaism state that men must not only grow beards but are forbidden to remove any portion of their sideburns at any time. Islam encourages men to keep facial hair, such as beards. In Christianity, the Bible states that men should not cut bald patches on their edges or trim the edges of their beard. Traditional Christians believe that hair is a covering given by God.

Discrimination may be direct or indirect. Direct discrimination occurs when a rule or policy expressly discriminates on unlawful grounds – eg a policy that only men can be employed as paramedics would be an example of direct discrimination.  Indirect discrimination occurs where a policy appears to be universal but has different applications given people’s protected attributes (see Disability Discrimination Act 1992 (Cth) ss 5 and 6).

An employer has to make reasonable accommodation to allow people with protected attributes, in particular a disability, to fully participate in the workplace. That is if a person has a disability (ie a medical or psychological reason that limits their ability to shave) or to require a person of a particular ethno-religious origin to shave thereby denying them a characteristic of their race or ethnicity, making reasonable accommodation for them is not unlawful discrimination, whereas imposing what appears to be a universal rule (‘everyone must be clean shaven’) may be an example of indirect discrimination.

Do the requirements for NSW Ambulance employees to shave their faces cross any Fair Work boundaries?

I am not sufficiently across the Fair Work case law, but I cannot see anything in the Fair Work Act (which doesn’t apply to NSW Ambulance employees in any event – see Fair Work Act 2009 (Cth) s 14(2)) or the minimum employment standards.

Whether it is a lawful direction all comes down to whether it is ‘reasonable’. That would require a consideration of risks/costs versus benefits.  The Clinical Excellence Commission’s Respiratory Protection Program Manual (v 2, November 2023) certainly favours the removal of facial hair but, as my correspondent has noted, does provide for two techniques that can be used to cover facial hair and still get an effective seal on face masks and advocates the use of those techniques for health workers ‘with an exemption to keep facial hair due to medical condition, psychological needs/reasons or genuinely held cultural or religious observance’ (p. 28 and Appendix 4A).

Whether a requirement by NSW Ambulance that staff are clean shaven is ‘reasonable’ would require consideration of the reasons for the policy – that in turn would require consideration of the risk assessment that has been undertaken.  The risk assessment is, hopefully, guided by the Clinical Excellence Commission that says (Appendix 4A)

The proper fitting of a tight-fitting respirator always requires the sealing surface of the respirator to be free of facial hair. HWs with any amount of facial hair, even a few days of growth particularly where the mask seals on the face, may NOT be able to achieve a seal with a tight-fitting respirator. HWs required to wear a tight-fitting respirator or attending fit testing must not have any facial hair present. The primary recommendation for achieving a seal, with a tight fitting RPD, requires a clean-shaven face.

The beard covering technique is a secondary option so not as a good as being clean shaven.

Is it unlawful discrimination? Probably not.  Making adjustment for those with a disability (a medical or psychological reason not to shave) is required by law (Disability Discrimination Act 1992 (Cth)).  That position is not so clear when it comes to race discrimination, but I think it is evident from the various claims cited in Thornton and Luker, above, it is expected that steps are taken to accommodate ethno-religious requirements where that is reasonable.

The way to test it would be to make a complaint to Anti-Discrimination NSW or refuse to comply with the policy, get subjected to disciplinary proceedings, and then make a relevant application to the NSW Industrial Relations Tribunal.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.