6.9 Trade unions and arbitration

Despite general union movement approval for the introduction of smokefree policies, they may cause worker discontent if brought in too quickly, or without appropriate consultation.

The New South Wales Labor Council has recommended that the employer and union should enter into consultation prior to restrictions being introduced, as a means of preventing disputes. However the employer's chief responsibility lies in providing a safe workplace, and if the union involved refuses to give their support for reasonable measures, then the matter should be referred to the Industrial Commission, where similar cases have already been heard (see below).

The New South Wales Labor Council has adopted a policy supporting a complete ban on smoking in the workplace. Similar policies have been endorsed by a number of other state and territory labor councils. The NSW Labor Council policy is reproduced in full in Section 4.13 of Appendix II.

The ACTU position

Although the Australian Council of Trade Unions (ACTU) does not have an official policy on smoking in the workplace, its President, Mr Martin Ferguson, has stated that(95):

The ACTU supports all Government initiatives to reduce smoking -- media campaigns, Quit, banning of advertising and sports sponsorship, and so on. As a social partner in Worksafe Australia, the ACTU was a participant in the development of the national policy statement on smoking and the workplace.

We encourage affiliates to promote and participate in programs which aim to reduce and gradually eliminate smoking from the work environment. Clearly, for these programs to be successful, they must be developed and implemented in consultation and be accompanied by a commitment from all staff, including senior management who should lead by example.

The ACTU is a member of the National Occupational Health and Safety Commission, which has issued statements about smoking in the workplace. See Section 6.2 above.

Views of Industrial Commissioners

Although smoking has not been determined by an Industrial Commission as an Industrial Matter, disputes concerning smoking have been resolved by industrial commissioners. The key details of three separate cases which have come before the Australian Industrial Relations Commission since 1989, each resolved in favour of adopting a smokefree workplace policy, are reproduced below:

Conciliation Commissioner Connor, 9 August 1989 (96)

The justification for a State industrial tribunal to intervene in cases of this kind is where a decision of an employer operates unfairly to employees in some way or where unreasonable demands or conditions are imposed on them. If an employer chose to take Draconian measures to eliminate smoking at the place of work, an order or award of a State industrial tribunal may possibly serve to modify those measures. But that is not the situation in these compulsory conference proceedings ... I regard the (Kogarah) Council's non-smoking policy as both a fair and sensible one. It incorporates breaks for cigarette smokers at morning and afternoon tea, counselling and a disciplinary code which is far from severe ...

The (Kogarah) Council is under a clear common law duty to provide a safe system of work for all its employees -- smokers and non-smokers alike -- and that common law duty has been reinforced and strengthened by Section 15 of the Occupational Health and Safety Act. Pursuant to Section 19 employees at work are also required to take reasonable care of the health and safety of their fellow employees and other persons at the place of work and to co-operate with management over safety matters including in that context a non-smoking policy ... Those statutory obligations on employers and employees give added impetus to the Council's non-smoking policy. They remain whether or not the vast majority of the Council's staff are prepared to tolerate smoking at the place of work or not. Any petition by the staff in support of the smokers does not assist their position at all.

Conciliation Commissioner O'Neill, 3 September 1990(97)

... it is recognised that the company do have the right to prohibit or ban smoking in the warehouse. My understanding is that this is done principally because of what would be regarded as a fire hazard and the company has signalled their intention that they do intend to increase that ban progressively to cover their entire operation in relation to working areas, leaving aside lunchrooms and wash and toilet facilities. They may seek to change their position at a later stage.

Conciliation Commissioner Caesar, 2 November 1990(98)

The following are excerpts from a much longer judgement:

... unless the union is prepared to declare and then to prove that smoking is not a health hazard and they really cannot object to the company's policy when having regard to their responsibilities under the Act for the protection of employees.

... Mr Jennings uses the term that his members do not want to have a policy shoved down their throat because they have certain rights. Well, of course, those rights, those very same rights, exist with the non-smoking employees to not to have smoke thrust down their throats.

... I have serious doubts that matters of safety and health and welfare -- perhaps not so much welfare although I will include it -- of employees is a matter of a vote with the majority deciding because if a situation is seen to be a hazard to health, welfare and safety then by law it has to be removed or the individual confronted with that hazard has to be protected from it.

So I do not know that the union can, nor can their members hang their hat too securely on the fact that a vote was taken and the vote decided that they did not particularly want to carry out a policy. I think it is more with looking at the policy and seeing if the policy is just and reasonable and proper in all of the circumstances.

... So the problem really should not be the company's. The problem should be the smoker, their problem being how to keep up their habit without inflicting a hazard on others and exposing the company to liabilities for that hazard.