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Can Employers Only Hire Non-smokers?

Recent studies have shown that 11.6% of adults smoked daily. This number has continued to decline due to the various public policy measures from the Australian Government. Between 1986-2006, public settings and workplaces began to implement bans on smoking. Employers have also contributed to this decline by putting out job advertisements that specifically request non-smokers. The issue is whether it is unlawful to only hire non-smokers. In short, it is not. This article will discuss the anti-discrimination laws in Australia and the rights afforded to smokers in the workplace. 

What does the law say? 

The Fair Work Act 2009 (Cth) is the primary legislation in governing workplaces and employment rights. The Act ensures protection from unlawful workplace discrimination against an employee based on the following attributes: 

  • race
  • colour 
  • sex 
  • sexual orientation
  • age 
  • physical or mental disability 
  • marital status 
  • family or carer’s responsibilities 
  • pregnancy 
  • religion 
  • political opinion 
  • national extraction or social origin 

An investigation of unlawful workplace discrimination can also occur during the employment process. For example, a manager refusing to hire a prospective employee based on their physical disability.

The maximum penalty for contravening these discrimination laws can amount to $66,6000 per contravention for a corporation and $13,320 per contravention for an individual. Learn how to make sure that your company’s hiring process is not discriminatory here.

Does Australia’s discrimination laws protect smokers? 

Smoking is not a protected attribute under the law. In other words, employers are able to only hire non-smokers or to advertise a job position that only seeks out non-smoking applicants, as it is not considered unlawful.

However, there remains a grey area as to whether a smoking addiction is a disability. Under the Disability Discrimination Act 1992 (Cth), a disability is defined as the total or partial loss of a person’s bodily or mental functions. 

In 2000, the Federal Court held that an opioid addiction fell under this definition. It was confirmed that the person in the case had been discriminated against based on his heroin withdrawal symptoms. Therefore, it is considered unlawful for employers to treat a prospective employee less favourable on the ground that he/she had previously been addicted to heroin, might in the future be addicted to heroin or another opiate, or because it imputed a disability to him/her. 

What is the position in NSW? 

NSW has amended its anti-discrimination laws in response to this decision in the Federal Court. Section 49PA of the Anti-Discrimination Act 1977 (NSW) outlines that a person’s addiction to a prohibited drug would not render unlawful discrimination on the ground of disability. In other words, in NSW, a person’s drug addiction would not be considered for an unlawful workplace discrimination claim. 

However, the question remains as to whether a nicotine addiction would be under the definition of a disability. Since there have been no cases recognising nicotine addiction as a disability, the position remains that smokers are not protected under Australian discrimination laws. 

Conclusion

In conclusion, while it is not unlawful to only hire non-smokers, employers must still be cautious that they are not engaging in discriminatory conduct during the hiring process. Workplaces should be upfront in their job advertisements and emphasise their obligations of maintaining health and safety standards for all employees. Lastly, employers should ensure that their company hiring policies are consistent in order to avoid claims of workplace discrimination.

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