Smoking is banned ... no butts about it

Wednesday 25 November, 2015 | By: Darrell Giles | Tags: smoking ban, mining, Fair Work Commission, CFMEU

Banning smoking at work, near work, in public spaces, and elsewhere has caused equal measures of healthy satisfaction and outrage. Even rooftop protests in prisons, including Townsville last week.

But the ban has been given the green light by the Fair Work Commission in a recent, controversial ruling.

On 1 January 2015, Glencore Mt Owen Pty Ltd (Glencore) applied a smoking ban on all of its employees working at the Coal Handling and Preparation Plant (CHPP) at the Mt Owen Open Cut Mine Complex, after the idea was raised by some of its employees.

The Construction, Forestry, Mining and Energy Union (CFMEU) challenged the company’s decision to implement this policy, believing that the ban on smoking was a restriction on the personal liberty of employees.

After all steps in the dispute procedure within Glencore’s Enterprise Agreement were undertaken in an attempt to reach a resolution, an application was made by the CFMEU to the Fair Work Commission to deal with the dispute through arbitration.

Union case

The CFMEU believed that employees should be allowed to choose whether or not to engage in a lawful activity such as smoking cigarettes during a work break. The union said the ban restricted their liberty to make this choice.

The employee’s in this area work a 12.5 hour shift, and get two paid 30-minute breaks away from the often ‘physically and emotionally demanding work’.

A CFMEU representative gave evidence that it would take approximately 16 minutes to drive the 2.8km from the CHPP site to the front gate of the Mt Owen Complex, smoke a cigarette and then get back to CHPP during this 30 minute break. As well as this, an employee would need to obtain permission from their supervisor before leaving the complex, and a light vehicle would need to be available at that time.

The purpose of the break was to provide employees with an opportunity to eat and rest. The operations manager at the Mt Owen Complex admitted that the size of the complex and the short duration of the meal break would make it “difficult, but not impossible” for an employee to have a cigarette during this break.

Glencore position

An employer had an obligation under the Work Health and Safety Act to ensure, as far as was reasonably practicable, the health and safety of their workers and others who visit the workplace. 

It is widely accepted that smoking poses a significant health hazard both for the person smoking as well as for those who are exposed to passive smoke.

Commissioner Tony Saunders agreed that an employer had a legitimate interest in dealing with health and safety matters associated with smoking in the workplace in a reasonable way and “accordingly, if an employer is ‘reasonably able’ to put into place a measure which eliminates risks to health and safety, rather than just minimising those risks, it should do so”.

Additionally, the Glencore Enterprise Agreement also provided that an objective of the business was to “to produce a health and safety culture where the highest standard is an unquestionable priority of all employees and where every employee is committed to the end”.

Commissioner Saunders said Glencore’s position had merit: “The direction given by Glencore to ban smoking across the Mt Owen Complex eliminates from the workplace (a) fire risks associated with smoking and (b) the risks associated with passive smoking. The direction may also reduce the harm caused by smoking to a smoker if the smoker reduces the number of cigarettes they smoke in a day as a consequence of the ban.”

To assist their employees with the adjustment, and further influencing Commissioner Saunders decision, Glencore introduced new practices to help support their employees to live a healthier, non-smoking lifestyle.

The employer engaged in extensive consultation with its employees from June 2013 prior to making its decision to impose the ban, and this continued after the ban was implemented on 1 January 2015. And employees were given six months’ notice prior to the implementation of the ban.

Throughout this consultation and notice period, Glencore offered ongoing support to its employees; providing them with a range of quit smoking programs, including reimbursements for costs involved with quit smoking products.

Commission decision

After carefully looking at the factors influencing the reasonableness of Glencore’s decision, Commissioner Saunders decided that the employer’s direction to ban smoking at the CHPP site of the Mt Owen Complex was lawful and reasonable.

The Commissioner refused the CFMEU's application and endorsed Glencore's right to proceed with the smoking ban.

Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752 (17 November 2015)

CCIQ Viewpoint

To understand what measures you are reasonably able to make to ensure health and safety in your workplace, you will need to take into account all relevant matters including: the likelihood of the hazard or risk occurring; the degree of harm that may result from that hazard or risk; what the persons concerned know or ought to know about the hazard or risk; the availability and suitability of ways to eliminate that risk; and, the costs associated, including whether or not the cost is grossly disproportionate to the risk.

When considering what particular smoking policy should be applied to your workplace, Queensland employers should also be aware of state legislation relation to smoking in public spaces;  click here.

The CCIQ Employer Assistance Team can assist you with creating and implementing reasonable workplace policies, phone us on 1300 731 988 or email advice@cciq.com.au

 

DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

 

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