Smoking and vaping: Victorian law and OH&S obligations

The Tobacco Act 1987 (Vic) prohibits smoking and vaping in all enclosed workplaces. ‘Workplace’ means any premises or area where one or more employees or self-employed persons (or both) work, whether or not they receive payment for that work.

Victoria has extensive smokefree laws that prohibit smoking and vaping in the following settings:

• in an enclosed workplace (with limited exceptions)
  
• all outdoor dining areas where food (other than pre-packaged food or uncut fruit) is provided on a commercial basis
  
• at certain food fairs and organised events
  
• at patrolled beaches
  
• at outdoor areas of public swimming pools
  
• at and within 10 metres of outdoor children’s playground equipment and outdoor skate-parks
  
• at outdoor sporting venues during organised underage sporting events and training sessions
  
• in cars carrying children at underage functions at train stations (including platforms)
  
• on raised tram stops and under tram and bus stop shelters
  
• on public transport
  
• on school grounds
  
• within prisons and anywhere on prison grounds
  
• on the grounds of, and at and within four metres of an entrance to, all Victorian childcare centres, kindergartens or preschools, and primary and secondary schools (including public and private schools) at and within four metres of children’s indoor play centres and ‘Victorian Public Premises’ (which includes buildings such as Parliament, courts, public service bodies and (as noted above) various hospitals and health services).

For more information on these laws, see the Victorian Department of Health website on Tobacco Reforms.

In Victoria, smoking and vaping are still permitted in the following areas:

• residential premises (except parts of residential premises used for business while non-residents are present)
  
• outdoor drinking areas (unless the outdoor drinking area has a roof and walls in place, and the total area of the wall surfaces exceeds 75% of the total notional wall area)
• the ‘High Roller Rooms’ at Crown Casino
  
• a vehicle (other than when a person under 18 is present or in taxi cabs)
  
• a place of business occupied by a sole operator that is not for the use of members of the public
  
• personal sleeping or living areas in hotels/motels/ hostels and residential care facilities
  
• declared areas in approved mental health services (none declared at present)
  
• detention centres established for the purposes of the Migration Act 1958 (Cth).

Exposure to secondhand smoke is a known health hazard and there is no safe level of exposure. People who inhale secondhand aerosol (from vaping) are known to inhale the chemicals, fine particles and heavy metals found in e-cigarette aerosol. Because of this, general legal duties around health and safety may in practice call for smokefree and vapefree workplaces. For example:

• Under the Occupational Health and Safety Act 2004 (Vic) employers have a duty to provide a safe and non-hazardous working environment for employees.
  
• Employers owe employees a duty of care under the common law: they must take reasonable care to protect employees’ health and safety in the workplace.
  
• Employees are entitled to no-fault workers’ compensation if they suffer injury arising out of or in the course of employment.
  
• The Disability Discrimination Act 199213 and other legislation protect the rights of people with disabilities and susceptibilities (including for example, people with asthma). 

For information on how to go smokefree and vapefree, take a look at our Going smokefree: a guide for workplaces.