The Fair Work Commission has warned the Dapto Leagues Club it might encounter difficulties enforcing its new policy against employee lip piercings or visible body art, noting the irony of its approach given "a majority of professional footballers" are "covered in tattoos".
DLC notified a dispute to the FWC under its enterprise agreement when one of its waiters refused to remove her lip ring after the policy was introduced.
But Deputy President Peter Sams said he had no jurisdiction to deal with the dispute because clause 7.2 of the agreement expressly said that the club's policies did not form part of it.
He said that the employee might still be required to comply with the policy as a term of her employment contract, and made some "obiter" comments to assist the parties.
The deputy president noted that no customers or fellow employees had complained about her wearing the lip ring, and there was no suggestion it affected health or safety.
He took "judicial notice" of the fact that the "dress and appearance norms of contemporary Australians, particularly young people, are very different to the community expectations of say, the 1960s or even the 1980s".
"Moreover, it strikes me as somewhat ironic, that this strict approach is being adopted by a football club when one considers that probably the majority of professional footballers we see on our television every football season, are covered in tattoos ('visible body art'), including on their legs, arms, necks and even their faces," the deputy president said.
"This was not the case 40 years ago, when one rarely saw a tattoo, unless it was discretely displayed by ex or existing Navy personnel or where all over body art was regarded as a curiosity, found only at the circus or amusement parks.
"Indeed, it was unheard of for women to have any tattoos at all. How times have changed."
Deputy President Sams said the waiter had worn the lip ring for many months without objection before DLC's policy was introduced, and that given "current standards" it was unrealistic for the club to deny her "right to self-expression".
He said there was also a "hint of discrimination" in the policy for wearers of piercings because, understandably, it did not require employees to remove existing tattoos.
The deputy president said his comments should not be read as suggesting that the club could not introduce and insist on compliance with policies, provided they were "lawful and reasonable".
"This means that, at the point of hiring, a prospective employee would be made aware of the Club's requirements and if there was a subsequent breach, there may well be justifiable disciplinary ramifications," he said.
But he said that given the circumstances, he foresaw "difficulties" for the Club if it sought to discipline the waiter.
Small nose piercings OK
The club began consulting employees on the new policy in January last year, and did not introduce it until October 2013.
It allows for nose piercings that are "stud style, small and co-ordinated", but bans piercings on other parts of the face, "including the lip, eyebrow and neck".
It also prohibits "visible body art" for new "front of house" employees, and "additional" visible tattoos for existing employees.
"The reasons for the policy is that that it does not fit the image that Dapto Leagues Club wishes to portray and has worked hard to develop over time," the policy says.
Dapto Leagues Club Ltd v Agius [2014] FWC 7953 (18 November 2014)