The tough new smoking bans to be imposed on Perth’s pubs and clubs will not be enough to counter the potential for legal action from past or current employees, according to several lawyers contacted by WA Business News.
Lawyers claim smoke bans no legal defence
The tough new smoking bans to be imposed on Perth’s pubs and clubs will not be enough to counter the potential for legal action from past or current employees, according to several lawyers contacted by WA Business News.
Perth’s nightclubs are required to have 80 per cent of the venue smoke free from July 1, and by January 1 2007 they will be required to be 100 per cent smoke free. Pubs will be allowed one room for smokers from January 1 2007.
But according to several occupational health and safety lawyers contacted WA Business News this week, current and future exemptions from smoking bans included in the Health Act’s Smoking in Enclosed Public Places Regulations 1999 do not provide legal cover for hospitality operators.
Sparke Helmore partner Greg Smith said pub or nightclub employees would have strong grounds for legal action if they developed diseases caused by passive smoking and could link it to their workplace.
“The Health Act regulations, including the exemptions, do not override the provisions in the Occupational Safety and Health Act,” Mr Smith said.
“The exemptions for smoking in enclosed places don’t exempt an employer from their obligation to their employees under the separate Occupational Safety and Health Act.
“It is not unreasonable to expect that an employee could bring a claim against an employer based on passive smoking sometime in the future. Just because there is an exemption from the bans doesn’t mean you’ve got a licence to conduct an operation that has the potential to cause harm to your employees.”
The Australian Hotels Association executive director Bradley Woods said his organisation was relying on different advice based on information given to it by the Court Government in 1999.
But there have been several passive smoking court cases that highlight the dangers of permitting smoke in the workplace.
In New South Wales, where smoking bans have not been imposed on pubs and clubs, a case from 2001 highlights the dangers.
A NSW Supreme Court jury awarded Marlene Sharp, a 62-year-old former bar attendant who worked at Port Kembla RSL Club and later developed throat cancer, $466,000 in damages.
Australian Council On Smoking and Health executive director Stephen Hall said Wayne Martin QC had indicated to the council that there would be nothing to prevent any person making a complaint under the Occupational Safety and Health Act.
“It would then be up to WorkSafe as to whether or not a prosecution was brought,” Mr Hall said.
“If in such a prosecution it was established beyond a reasonable doubt that a workplace such as a hospitality venue in which smoking was occurring was hazardous to employees working there, the prosecution should succeed.”
