Each Australian state and territory has its own Occupational Health and Safety Act. Although their wording varies slightly, they nonetheless effectively state that:
1. the employer has a duty to provide a safe workplace for employees and others who may enter the workplace, such as clients, visitors, or independent contractors;
2. employees have the obligation not to expose fellow employees or others who may enter the worksite to hazardous situations. They are also obliged to co-operate with employers over safety matters.
It could be argued that the various state and territory Acts provide a legal obligation for owners of places used by the public (for example, restaurants) to provide a smokefree environment, on the grounds that they owe both their employees (for example waiters and attendants) and their customers and clients a duty of care to provide a safe environment (see also Section 6.11 below).
The legal position concerning passive smoking has also been outlined in Federal Parliament. In November 1986, the Federal Attorney General provided advice which was tabled in the House of Representatives:
An employer has a common law duty of care to take all reasonable steps to protect its employees' health and safety, including the provision and maintenance of safe workplaces.
The Attorney-General's Department advised ... that injury from passive smoking is reasonably foreseeable and that consequently such an injury could give rise to an action for damages at common law.(9)
This position was restated in June 1991, in the wake of the Morling decision (see Section 6.3 below). Senator the Honorable Kerry Sibraa, President of the Senate, tabled advice from the Joint House Department which stated that in light of the Federal Court (Morling) decision, 'the onus now appears to fall on employers and managers of facilities to take a more positive role in protecting non-smokers.'(10) Senator Sibraa commented that:
In summary, a failure to limit employee exposure to smoke could be a breach of an employer's duty to 'take all reasonably practicable steps to protect the health and safety at work of the employer's employees'.(9)
Such a breach of duty could constitute an offence under the Occupational Health and Safety Acts which operate throughout Australia, as well as a contravention of other specific legislation such as the Factories, Shops and Industries Act in New South Wales. In addition to giving rise to the risk of prosecution, a breach of this nature could give rise to civil action for breach of statutory duty under certain legislation and breach of common law duties of care, as well as claims for workers' compensation.
Against this background, the National Occupational Health and Safety Commission has issued a Worksafe Australia Guidance Note on Passive Smoking in the Workplace.(11) Issued in July 1994, the Guidance Note identifies and accepts the scientific evidence that passive smoking has adverse health effects and recognises the legal duties of employers to eliminate or control that risk. The Guidance Note covers the identification of passive smoking as an occupational health and safety hazard, the assessment of the risk associated with environmental tobacco smoke in a particular workplace (including outdoor and partially enclosed areas), the control of that risk, and advice on implementation of a workplace policy to eliminate or control the risks of passive smoking.
The Guidance Note advocates elimination of the hazard as the preferred means of controlling the risk. If this is not practicable, the Guidance Note provides that the employer should ensure that the risk to health is controlled in accordance with a defined hierarchy of control measures. Supporting appendices provide advice for workplaces introducing smokefree policies, and list sources of further information on passive smoking and policy implementation.
It appears that following the issue of this Guidance Note, employers will be liable to prosecution and civil liability for any failure to ensure against workplace exposure to passive smoking.(12)