By Renae Harg, Senior Associate and Miette Xamon, Law Clerk
Smoking in the workplace can damage more than your health
Smoking is becoming progressively less common in Australia and has decreased by 36% since 2001. However, 2.5 million Australians (or 1 in 7 aged 15 and over) still smoke daily. While smoking is slowly being suppressed, it is still a significant occurrence in many workplaces and can raise certain challenges for employers. Do employers have to accommodate smokers? Or are employers allowed to implement strict no-smoking policies?
Employee smoke breaks can end up costing an employer thousands of dollars in lost productivity. Smokers take an average of four smoke breaks per day, each break lasting approximately 10 minutes. This equates to six full workdays per employee lost to smoke breaks per year. As an employer it makes sense to consider the effects of allowing smoking in your workplace and what the benefits of implementing a ‘smoke-free workplace’ policy truly are.
Smoking policies, Fair Work Act 2009 and discrimination
Before implementing or updating any policies, it is crucial to understand your legal requirements.
Employees do not have a statutory entitlement to take smoke breaks, and smoking is not covered by any state or federal anti-discrimination legislation. Meal break entitlements are covered by an employee’s relevant award and an employer’s individual workplace policy. As an employer you are allowed to stipulate that an employee may only leave the workplace to smoke during their regular meal breaks, or award-covered ‘rest breaks’. In Bajada v Trend Windows and Doors Pty Limited  FWC 5937, the Fair Work Commission decided that excessive smoke breaks during work hours constituted a valid reason for dismissal.
In a February 2019 Fair Work Commission decision, an employee who was dismissed after breaching a workplace No Smoking Policy was found not to have been unfairly dismissed. In Hanson v Rhino Rack Perth  FWC 1235 the employee, Mr Hanson, had been observed breaking the company’s smoking in the workplace policy on numerous occasions, including being caught smoking while driving a forklift in the company’s warehouse around other employees. The Commission saw the employer’s policy as lawful and reasonable, stipulating that employees were to smoke in designated areas during meal breaks only, and never indoors. Mr Hanson’s continued breaches of the company’s smoking in the workplace policy, providing his employer with a lawful means to terminate his employment.
Occupational health and wellbeing is your responsibility as an employer
The Occupational Safety and Health Act 1984 (WA) requires employers to provide and maintain a working environment in which employees are not exposed to hazards. The Occupational Safety and Health Regulations 1996 (WA) prohibits smoking in an enclosed workplace, such as the warehouse in Hanson v Rhino Rack Perth.
Take a look at our FAQs and if you are still unsure if your current smoking in the workplace policy is sufficient contact MDC Legal. Our expert team will provide you with comprehensive advice ensuring your policies around smoking in the workplace and smoke breaks don’t cause you headaches.