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 to smoke.

The CFMEU argued that such a requirement was unreasonable for the company’s CHPP workers who completed 12.5-hour night and day shifts that were “physically and emotionally demanding.” Commissioner Saunders agreed that employees 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, he also said that the ban eliminated the health risks associated with passive smoking and the fire risks associated with cigarettes, was a “reasonably practicable” measure for ensuring the health and safety of workers under workplace health and safety laws and that smoke-free policies were adopted by a majority of workplaces in New South Wales.

He also considered that the many measures the company had put in place to offer support to employees to quit or reduce smoking had “ameliorated” the matters which would otherwise weigh in favour of the CFMEU’s contention that the ban on smoking was unreasonable.

If you plan on introducing a ban on smoking (or on some other lawful activity), it is important that you plan its introduction properly and ensure systems are in place for supporting employees to comply. If you require assistance, please get in touch with us.

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

Joanna Bandara
Associate
M +61 434 926 919
T +61 3 9611 0196
jbandara@sladen.com.au

Louise Houlihan 
Principal
M +61 409 835 809
T +61 3 9611 0144
lhoulihan@sladen.com.au