Employer argues uniform rule seeks to reduce risks to staff
Sydney Trains employees will be allowed to wear shorts again at work after the Fair Work Commission (FWC) ruled in unions' favour over their dispute on uniforms.
In the dispute, unions have called out Sydney Trains' "blanket approach" in requiring long pants for all employees even if they're not performing tasks with an unacceptable risk.
According to the unions, this is in contradiction of the Clause 32.1 under the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.
"Without limiting the generality of this clause, as part of the Employer's uniform offering, the Employer will provide Employees the option of wearing shorts and other uniform items suitable for hot weather conditions other than in circumstances where there is an unacceptable risk to safety," the clause read.
The unions accuse Sydney Trains of reversing this obligation so that instead of the starting point being that employees are entitled to wear shorts, wearing long pants is the default rule unless employees can prove there are no risks involved.
It further also alleged that Sydney Trains failed to engage with them in consultation, accusing the employer of not complying with its obligations under the WHS Act and agreement.
Sydney Trains' defence
But Sydney Trains maintained that wearing long pants is a control measure to eliminate various risks to employees.
"Those risks include: UV exposure, visibility (eg. when accessing the rail corridor), cuts and abrasions (eg. walking through rail corridor), slips and trips (eg. walking on ballast), burns or irritations due to spillage of liquids/chemicals, skin irritations or abrasions from flora and fauna, and risks relating to work on or near rail track and ballast," the employer submitted.
On the topic of consultation, Sydney Trains argued that employees and their representatives do not have the power to veto or change an employer's decision.
"It is not a process of negotiation, bargaining or 'co-determination' in relation to the relevant decision which is the subject of the consultation – nor is there any requirement on the employer to reach agreement with the employees being consulted," it submitted.
FWC decision
The FWC took the side of the unions in the case, ruling that Sydney Trains should comply with its consultation obligations under the WHS Act and agreement.
"I accept the Applicants' criticism that the question for determination proceeds on a false premise, as Sydney Trains cannot simply direct employees to wear long pants because Sydney Trains alone has assessed that wearing shorts for certain employees would pose an unacceptable risk to safety," the FWC concluded.
"For the reasons outlined above, that assessment cannot be made unilaterally, and requires genuine and contemporaneous collaboration in accordance with the consultation obligations imposed upon Sydney Trains."
