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Smoking employer gets burned
New Zealand has some of the most prohibitive anti-smoking legislation in the world.
In 1990 Parliament introduced the Smoke-Free Environments Act. The Act stopped short of making smoking illegal - it permits the sale and use of tobacco in this country. It did, however, (amongst other things) prohibit the smoking of tobacco in a number of different places.
Put simply, and with few exceptions, the law made it illegal to smoke in any workplace in this country.
We are all familiar with the consequences of the law. We have all witnessed clusters of smokers, huddled together in doorways, car parks or side alleys - just outside the boundary of their workplace.
There is no question that smoking is a social ill that our Parliament has attempted to disincentivise. But, at the same time, it is a simple fact that many New Zealanders still wish to smoke - and are not in breach of any law by doing so.
This intersection of these competing interests sometimes offers up difficult problems for an employer - as a recent case illustrates.
The employer in Progressive Meats Limited v Ministry of Health (Unreported, High Court, Napier, 28 September 2006) operated a meat processing facility. By virtue of stringent overseas export requirements, it had to adhere to prescriptive hygiene standards. Amongst a number of things, its employees were required to commence their working day by changing into freshly laundered clean white clothing - which included aprons, head coverings and boots.
If an employee left the workplace, he or she was required to get changed out of this garb - and if he or she returned, was required to get "kitted up" all over again.
Many of the workers at Progressive's plant were smokers - and, indeed, the High Court Judge went further and commented that some might even have been addicted to nicotine. But smoking outside of the workplace was problematic.
If an employee wished to smoke out of the workplace during a break, he or she would be required to get changed, leave the premises, smoke a cigarette, and then get "kitted up" afresh. Practically, it was impossible to perform this process during one of the short break times.
The employer recognised this inherent difficulty, and attempted to react responsibly to it. It created a smoking room within the workplace itself. The smoking room was situated adjacent to the cafeteria, and was sealed from it. A device provided a separate air supply to the room, which meant that smoke from inside the area was pumped outside - and fresh air pumped in.
The smoking room was only accessed by employees who wished to be there - that is, presumably only those employees who wished to smoke.
The Ministry of Health took issue with Progressive's arrangement. It pointed out that the smoking room was situated within a workplace, and was, for that reason, in breach of the smokefree legislation. Put another way, the Ministry argued that the employer was permitting certain of its employees to smoke within its workplace.
The employer answered the Ministry's arguments by pointing to the purpose of the legislation - which is effectively to reduce non-smokers' exposure to second-hand smoke. It said that it had achieved this purpose with the solution it had found.
The High Court had sympathies for both arguments.
On one hand, Justice Baragwanath had some sympathy for the issue that confronted the employer. It had gone to an effort to accommodate the demands of a significant portion of its workforce - and had done so in a way which complied with the object of the legislation. Further, His Honour noted that, because of the particular nature of the workplace, other solutions were not available to the employer - meaning that, in the absence of a smoking room, nicotine-addicted employees would simply be required to go without their fix.
On the other hand, however, Justice Baragwanath noted that it was the Court's responsibility to give effect to Parliament's policy - which was clearly expressed in the legislation. His Honour said that he was unable to read down a clear provision - even though he had sympathy for the company that had acted in breach of it.
In the event, therefore, the Court found that the employer had acted in breach of the Act.
This decision sends a strong message to employers: no matter what the particular circumstances of a workplace, it is unacceptable to allow people to smoke within it. One may have sympathies for an employer confronted by problems caused by this fact - but employers are now on notice that the law will be interpreted strictly.
