Australia: Victorian Employers May Be Fined If Smoking Occurs In Enclosed Workplaces

On 1 March 2006, the Tobacco Act 1987 (Vic) was amended to require that enclosed workplaces in Victoria be smoke-free.

Introducing the changes, Ms Pike, the Minister for Health, explained that the prohibitions on workplace smoking were intended to "address the harms caused from exposure to passive smoke". The Minister stated that around 30 percent of Victorian workers continue to be exposed to passive smoke, with the hospitality, factory, warehousing and home business industries most affected. Passive smoke at work was estimated to create 200 times the acceptable risk of lung cancer and 2000 times the acceptable risk for heart disease.

Employers should be aware that:

• it is now an offence for a person to smoke in an enclosed workplace.
• if smoking occurs in an enclosed workplace, an occupier of the workplace also commits an offence in some circumstances.
• "no smoking" signs must be displayed by occupiers of some workplaces.
• employers are entitled to develop policies banning smoking in areas additional to those in which smoking is prohibited under the Act.

The maximum penalty for contravening the relevant provisions of the Act is currently $524.05.

A "workplace" is any premises or area where one or more employees or self-employed persons (or both) work, whether or not they receive any payment for that work.

A workplace will be enclosed if the area, room or premises is "substantially enclosed by a roof and walls", regardless of whether the walls or any part of them are permanent or temporary, or open or closed.

This means an "enclosed workplace" remains enclosed for the purposes of the Act, even if all doors and windows are opened.

However, the following workplaces are specifically exempted from the prohibition on smoking. These are:

• residential premises not being used for business
• part of a residential premises being used for business, when only people who reside at the premises are present
• outdoor drinking and dining areas
• vehicles
• a place of business occupied by the sole operator of the business that is not for the use of the public
• a personal sleeping or living area of a residential care facility, or of premises providing accommodation to the public for a fee (eg. hotels)
• an area in an approved mental health service declared by the Secretary of the Department of Human Services to be a smoking area
• prison cells and prison yards
• detention centres established for the purposes of the Migration Act
• high roller rooms at the casino.

The partial smoking restrictions on licensed premises, the casino generally and approved venues will continue until 1 July 2007. After this date, they must comply with the stronger prohibitions contained in the amended Act.

An "occupier" of an area or premises is a person, appearing over 16 years of age, who is, or appears to be, in control of the premises. Most employers would be occupiers of the workplace of their business under the Act.

As noted above, an occupier of an enclosed workplace commits an offence if smoking takes place in that workplace. An employer could be liable if an employee, customer or member of the public smoke within an enclosed workplace.

It is a defence for the occupier if the occupier proves that they did not provide an ashtray, matches, lighter or any other thing designed to facilitate smoking where the contravention occurred, and

• was not aware, and could not reasonably have been aware, that the person was smoking; or
• requested the person to stop smoking and informed the person they were committing an offence.

Occupiers of the following premises are required to display "no smoking" signs:

• enclosed restaurants and cafes
• retail shopping centres
• casinos
• bingo areas and centres
• licensed premises with designated non-smoking reasons.

Although other employers are not required to display no smoking signs, it is recommended that they display no smoking signs in relevantly enclosed areas.

For those requiring, or desiring, to display "no smoking" signs, signs can be obtained free of charge by calling the Tobacco Information Line on 1300 136 775. Employers may also create their own signs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.