The Fair Work Commission (Commission) has upheld a company’s smoking ban following a challenge by the Construction, Forestry, Mining and Energy Union (CFMEU). Commissioner Tony Saunders held that the employer’s direction to ban smoking at its workplace, a complex which was comprised of two open cut mines and a coal handling and preparation plant (CHPP), was lawful and reasonable.

The ban meant that employees who wanted to smoke were required to drive 2.8km to the complex’s front gate.

The CFMEU argued that the requirement was unreasonable for employees who completed 12.5 hour shifts, and that employees of CHPP had “a legitimate interest in being able to choose whether or not to engage in a lawful activity such as smoking cigarettes during a work break”.

However, Commissioner Saunders said that the ban eliminated the health risks associated with passive smoking and the fire risks associated with smoking cigarettes. He considered the ban a “reasonably practicable” measure for ensuring the health and safety of workers under workplace health and safety laws.

Also taken into account were the many measures the company had put in place to offer support to employees to quit or reduce smoking. The Commissioner believed these steps had “ameliorated” the matters which would otherwise weigh in favour of the CFMEU’s argument that the ban on smoking was unreasonable.

If you plan on introducing a ban on lawful activity in your workplace, it is important that the ban introduced properly, and that there are systems in place for supporting employees to comply.

To discuss this further, or for more information, please contact:

Jim Rutherford
Principal
Harwood Andrews
T: 03 5226 8579
E: jrutherford@harwoodandrews.com.au

Sonia McCabe
Senior Associate
Harwood Andrews
T: 03 5226 8558
E: smccabe@harwoodandrews.com.au