What the law actually allows
Joel Hayden, practice group leader at LegalVision, says the starting point is straightforward. “Australian employers can set appearance rules where they are lawful, reasonable and connected to the work being performed,” he says. The risk, he explains, arises when “the policy controls appearance for image alone, rather than safety, hygiene, role requirements or a clear business need.”
A hospitality venue restricting loose jewellery for safety reasons is on solid ground. A blanket ban on visible tattoos “because management dislikes them” is a different story. “The line is crossed when a policy targets, excludes or disadvantages someone because of a protected attribute, rather than because of a genuine workplace requirement,” Hayden said – citing clean-shaven rules or makeup requirements that can disproportionately affect people of certain religions and genders.
Melini Pillay, principal at McCabes, frames the legal boundary the same way. “Broadly speaking, it’s the line between acceptable, reasonable and lawful directions crossing into discrimination, where we move beyond a legitimate business reason and treat someone differently or less favourably because of a protected attribute, like age, disability, race or sex,” she said.
Where the case law has landed
Pillay pointed to a string of Fair Work Commission and Federal Court decisions that show how fact-specific this area is. In Australian Telecommunications Commission v Hart (1982) 43 ALR 165, the Full Federal Court found an employer could lawfully direct a worker not to wear a caftan to work because of the impact on the organisation’s image, given the role involved customer contact.
In the XPT case – Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 – the Full Bench affirmed that tribunals shouldn’t interfere with managerial prerogative unless a direction is unjust or unreasonable.