Is this a test case for smoking in the workplace?
A direction by an employer to ban smoking in or at the workplace was a perfectly lawful and reasonable instruction in all the circumstances. In reaching this conclusion, the Fair Work Commission worked its way a number of issues which the Commissioner thought appropriate to reaching the decision, including changing social acceptance of cigarette smoking, previous practices and the views of the workforce generally.
“Having carefully weighed each of the factors set out in paragraphs [13] to [50] above, I am of the view that it was open to a reasonable employer in the position of Mt Owen, acting reasonably, to issue a direction to its employees working in the CHPP to ban smoking at the Mt Owen Complex. Put another way, this is not, in my view, a case in which no reasonable employer could have issued the direction issued by Mt Owen banning smoking at the Mt Owen Complex. Even if I held the view, which I do not, that a different direction concerning smoking at the Mt Owen Complex, such as the previous direction banning smoking at the workplace save in specific locations, may have been more appropriate or better, that would not have altered my conclusion as to the reasonableness of the direction issued by Mt Owen. “
Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd (2015) FWC 7752 delivered 17 November 2015 per Saunders C