In Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752 the Fair Work Commission confirmed that a direction given by the employer to its mine workers outlawing smoking on site was lawful and reasonable.

The employer successfully argued that its anti-smoking policy fell within its obligations to provide a safer, cleaner, and healthier workplace environment.

What made this direction lawful and reasonable?

Ultimately the Commission is unwilling to interfere with the rights of an employer to manage its own business unless they are imposing something which is unjust or unreasonable.

The key factors for finding in favour of the employer were:

  • Risks associated with smoking and the employer’s legislative obligations under workplace health and safety legislation to eliminate or reduce risks to health and safety of workers.

The employer submitted evidence proving that smoking is not only a significant hazard to both smokers and those subjected to passive smoke, but also a potential fire risk in the workplace. In addition, the employer’s Enterprise Agreement committed it to “the highest standard of health and safety culture”. The Commission agreed that a smoking ban was a reasonable measure to eliminate, not just minimise, the risks to health and safety of its workers.

  • Previous directions to employees restricting smoking in the workplace

The employer also produced evidence to demonstrate that prior to the smoking ban, it had policies and procedures in place restricting smoking in enclosed areas and less than 10 metres from doorways and infrastructure.

  • Changing attitudes towards smoking

The Commission agreed with the employer that Australian society trends towards smoke-free workspaces and public places such as shopping malls was further support for the reasonableness of the ban.

  • Employees’ support for, or opposition to, the direction

None of the affected employees who smoked had made a direct complaint to the employer about the policy.

  • Consultation with employees

The employer engaged in extensive consultation with its employees for approximately 18 months prior to the ban being imposed.

  • Notice prior to implementation of the direction

The employer gave its employees six months notice prior to the ban being implemented.

  • Offer of ongoing support to employees

The employer offered ongoing support to its employees, encouraging them to participate  in a range of quit smoking programs. This was broadcasted and discussed with separate workgroups via toolbox meetings. The employer also offered to reimburse each employee up to $300 for purchasing quit smoking products or programs.

Lessons learnt

A wise employer that is contemplating the imposition of a total smoking ban on its employees should, as with any significant workplace change:

  1. Notify and consult the affected employees. If employees are involved in the decision-making process and take ownership of the policy, there will be less resistance and greater acceptance;
  2. Consider the practicalities involved;
  3. Document a well written and comprehensive policy that compliments existing legislative bans in enclosed places, and extends to all outdoor workspaces;
  4. Provide access to counselling and support services such as Quitline.

Working with an employment solicitor who understands the nature of your industry and the unique characteristics of your business will ensure that your workplace policies are appropriate and reasonable.