Fact Sheet 41

Purpose of this fact sheet

This fact sheet provides advice to employers in the  Commonwealth jurisdiction who allow employees and others to take informal breaks from their work to smoke outside buildings occupied by Commonwealth employers. It also alerts  employers, employees and others about the hazards associated with exposure to environmental tobacco smoke (ETS).

The current situation in the Commonwealth jurisdiction

The Australian Public Service adopted a smoke free work environment policy in 1988. This policy applies to all Commonwealth occupied buildings. Commonwealth employers often permit employees to take informal breaks to smoke outside buildings they occupy. This practice may result in other employees, contractors and third parties being exposed to ETS. This exposure may occur when entering and exiting the building or inside the building by the ETS entering through doors and/or the air conditioning.

Legislative obligations

Section 16 of the Occupational Health and Safety Act 1991 (the Act) places a duty of care on employers to take all reasonably practicable steps to protect the health and safety at work of their employees and contractors. In particular section 16(2)(b)(i) requires employers to provide a workplace that is safe for employees and without risk to their health. Section 16(2)(b)(ii) requires employers to maintain a means of access to and egress from the workplace that is safe for the employees and without risk to their health.

In considering employers' duties under section 16 of the Act there are two distinct issues, the duty of care to employees who choose to smoke during work hours and those that may inhale their ETS.

It is unlikely that employers in the Commonwealth jurisdiction would be in breach of their obligations under section 16 regarding employees who choose to smoke during informal work breaks during work hours. But an employer in the Commonwealth jurisdiction may be in breach of section 16 in respect to other employees who are exposed to ETS as a result of employees smoking outside the building. This exposure occurs when entering and exiting the building or inside the building by the ETS entering through doors and/or the air conditioning.

Section 17 of the Act places a similar duty of care on employers in the Commonwealth jurisdiction in relation to third parties. Similarly to employees, employers have a duty of care in respect to third parties that are exposed to tobacco smoke either inside the workplace or while entering and leaving the workplace as a result of employees smoking outside the building.

What employers in the Commonwealth jurisdiction should be doing

In deciding what steps are reasonably practicable, employers should be weighing up the magnitude of any identified risk to employees, contractors and third parties with the cost (both monetary and non-monetary) of taking steps to eliminate those risks.

Risks to be considered may include:

• employees smoking in a place where smoke could enter the building through the air conditioning system or doors

• employees smoking in areas where other employees, contractors and third parties enter or exit a building and other frequently used passageways.

• the types of work being undertaken by employees eg a security guard working near an entry/exit point.

Steps to minimise any risks may include:

• ensuring employees and contractors do not smoke in places where smoke could enter the building

• ensuring employees do not smoke in areas where other employees, contractors and third parties enter or exit the building and in other frequently used passageways

• developing an educational support program warning employees of the dangers of smoking

• encouraging employees to stop smoking through access to quit smoking courses.

Where the Commonwealth employer is one of several tenants in a building they may need to negotiate as part of a building lease that smoking be banned in certain areas.

Negotiation with other tenants or the owner to ban smoking in certain areas may also be required.

Where employees or contractors are limited to smoking in particular areas outside a building the employer should ensure those areas are well ventilated to get rid of any ETS.

Environmental Tobacco Smoke

Exposure to ETS, also known as passive smoking, occurs from breathing in other people’s tobacco smoke. ETS comes from the burning end of a cigarette, pipe or cigar and from the smoke breathed out by a smoker.

Evidence on the detrimental effects of ETS has continued to accumulate over many years. The National Health and Medical Research Council has reviewed scientific evidence concerning the possible health effects of exposure to ETS. It has concluded that exposure to ETS can cause lung cancer and may also cause coronary heart disease in adults.

Tobacco smoking is the single largest preventable cause of disease and premature death in Australia.

Tobacco control is clearly identified as a health priority by all Australian governments.

Sources of information

Department of Health and Ageing

Australian Safety and Compensation Council

For further information about this fact sheet, or others in the series, please contact Comcare on the General Enquiry Line 1300 366 979 or visit our internet website on http://www.comcare.gov.au/