KEY POINTS:
Shouldn't smokers have some rights?
Don't get me wrong - I don't smoke and loathe the smell of cigarette fumes - I will even cross the street to avoid inhaling them. And being able to go into a bar without breathing the stuff in all night is great.
However, if someone can partake without others having to inhale their smoke, then fine - my attitude is let them do it. These days no one can say that they don't know the risks.
One of the aims of the Smokefree Environments Act 1990 was to reduce non-smokers' exposure to "second-hand" smoke. The Act placed restrictions on smoking in workplaces. According to the Ministry of Health , however, some 54 percent of indoor workplaces were not legally required to be smokefree, including non-office environments and the hospitality industry.
The Act was amended in 2004, when all indoor workplaces became 100 percent smokefree. This included dedicated and even ventilated smoking rooms.
So what, I hear you say - can't smokers just go outside? Well, in most cases they can - but in some situations, the employer's business needs prevent this. Progressive Meats, for example, introduced new hygiene standards in 2002 at their Hastings plant, requiring all meat handlers to don protective gear at the start of each shift. Once dressed in their gear, no worker can leave a protective clothing area unless in transit to another designated work area, meaning workers could no longer nip outside for a cigarette during their 15 minute work breaks.
So, Progressive built a smoking room , which formed part of a protective clothing area. The room was accessed through two self-closing sealed doors, and had an extractor fan and two exhaust ducts that took contaminated air directly out of the room. Smokers were responsible for cleaning the room, so no cleaners had to enter.
This fell foul of the 2004 law changes, however, and Progressive was prosecuted and convicted under the Act. They went all the way to the Court of Appeal , which recently rejected their argument on appeal that the smoking room was not covered by the legislation.
The upshot of all this is that those workers who want to have a smoke have to spend most of their break changing in and out of their protective gear - meaning it's not really a break at all. As Progressive pointed out, the smoking room solution met the intention behind the law, to protect non-smokers from passive smoking.
The Ministry of Health says the Act is not targeted at smokers themselves. If that's true, then this seems to be one of those cases where a universal ban, with no room for exceptions, creates the wrong result. Why shouldn't these workers be able to use their smoking room to have a puff on their breaks?
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
