May 31, 2019
For those of you who are unaware, today is World No Tobacco Day. In light of this international occasion, we arranged for a Q&A session with our employment relations expert, Nicola Scott, to discuss the ever-relevant issue of smoking in the workplace.
No. Contrary to popular belief, smoke breaks (or “smokos” as they are colloquially known) are not a legal right of the employee within the Fair Work Act 2009 (Cth). Employers have no hard obligations to provide their workers with opportunities to smoke. However, employees are entitled to meal and rest breaks in which they may choose to smoke.
The details of the meal and rest breaks that employees are entitled to are generally contained in the Modern Award or enterprise agreement that governs their employment. It would be wise for employers to check these documents, as well as the employment contract and employee handbook for details of the meal and rest breaks to which their employees are entitled.
Yes, it is well within the rights of the employer to enforce a smoke-free workplace through policy and procedures.
With respect to termination of employment for smoking, the Fair Work Commission recently determined that smoking at work may be deemed as a valid justification for dismissal in particular circumstances (see: Bajada v Trend Windows and Doors Pty Limited  FWC 5937).
This was due to the fact that the employee was aware of the workplace policy which prohibited smoking, at certain times or altogether, yet continued to wilfully breach said policy. Not simply because he was a smoker.
If we view smoking as less of an indulgence but rather an addiction, it can conceivably be deemed a necessity to some. Where this falls apart, however, is when we consider how other addictions are tolerated within the workplace.
Alcohol and illicit substance are surely not acceptable in the workplace. So where does this leave cigarettes?
It is worth noting that employers have a duty towards their employees. As outlined in the work health and safety legislation, this includes an obligation to address drug and alcohol issues in the workplace which requires employers to take “… reasonable or practicable steps…” to ensure the health and safety of all
The philosophical opposition between individual and collective rights is something that has been explored throughout all of history by everyone from Adam Smith to Ayn Rand. In the context of workplace smoking, this is a matter of equality and fairness.
Though smoke breaks are not a legal right of the employee, some workplaces accommodate for smoking workers. In the scenario where employees take smoke breaks throughout the day, employees who do not smoke are faced with a disadvantage — in the metric of noticeably less break time.
Furthermore, there is the concern of health. More specifically, there is the tangible aspect of passive smoking. It’s one thing for an employee who smokes to voluntarily undergo all the associated hazards and risks of regular cigarette consumption, it’s another thing entirely to indirectly subject a non-smoking employee to similar conditions.
At the end of the day, while an employee should have every right to smoke under the correct circumstances in the theoretical sense, the power to dictate whether an employee can smoke during working hours and where this occurs, in the practical sense, ultimately falls to the employer.
An individual’s right to their vice does not outweigh the collective’s right to health and safety, and it certainly does not outweigh the employer’s duty to maintain a safe workplace.
The verdict is: yes.
Workplaces have a strong case for deciding whether an employee can or cannot smoke during working hours and where this smoking occurs.
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