If you run a cafe, a warehouse or an office in Australia, smoking at work is not just a staff comfort issue. Two separate sets of laws regulate it: work health and safety (WHS) legislation, which obliges you to protect workers and visitors from second-hand smoke and vape aerosol, and state and territory smoke-free laws, which set out where smoking is banned on premises and what signage you must display. Neither set of laws requires you to have a document called a "smoking policy", but a short written policy is the practical way to discharge both sets of duties and to give your team clear, consistent rules.
This guide covers who the obligations apply to, the five duties you need to meet, the penalties for getting them wrong, and a compliance checklist you can act on. We use New South Wales as the worked example for smoke-free rules, because the detail (buffer distances, signage, penalties) changes from state to state.
Who the obligations apply to
WHS duties apply to every business, whatever its size. The Work Health and Safety Act 2011 (NSW) (the WHS Act) imposes the primary duty of care on every "person conducting a business or undertaking" (a PCBU). There is no headcount or turnover threshold: a two-person shop and a 500-person logistics company carry the same duty. The obligation is owed to your workers (employees, contractors, labour-hire workers and volunteers) and to anyone else who could be affected by the work, including customers and visitors.
Smoke-free laws bind a different person. They apply to the occupier of premises, meaning the person with management or control of them, and they regulate "public places" only: places the public is entitled to use or that are open to the public. A shop, cafe, office foyer or any workplace a customer can enter is a public place, so its enclosed areas are smoke-free areas. A private warehouse with no public access may fall outside the smoke-free statute, but the WHS duty still applies to the air your workers breathe. Your obligations do not stop at the front door.
Duty one: the WHS primary duty of care
Section 19 of the Work Health and Safety Act 2011 (NSW) requires you to ensure, so far as is reasonably practicable, the health and safety of your workers and of other people affected by the work. The section spells out what that includes: a work environment without risks to health and safety, safe systems of work, adequate facilities for the welfare of workers, and the information, training and supervision workers need to work safely.
Second-hand tobacco smoke and vape aerosol are recognised health risks, so they sit squarely inside this duty. "So far as reasonably practicable" is not an escape hatch: it means what a reasonable person in your position, knowing what you know, would do to eliminate or minimise the risk. For smoking, the hierarchy runs from elimination (a total ban) down to minimisation (a designated area placed where smoke cannot drift back into the building).
What this looks like in practice
In practice, the duty breaks into four steps:
- Assess the risk: Look at where people smoke now, near entrances, under awnings, beside air intakes or inside work vehicles, and where the smoke or vapour drifts.
- Control the risk: Eliminate indoor smoking outright. If you keep a designated outdoor area, place it away from doors, windows, air intakes and pedestrian paths, and provide disposal bins.
- Inform and train: Tell workers where they can and cannot smoke, brief new starters, and keep the rules visible.
- Review: Revisit the arrangements when the premises change, when work practices change, or at least annually.
Duty two: consult workers on health and safety matters
Section 47 of the WHS Act requires you to consult, so far as is reasonably practicable, with workers who are directly affected by a matter relating to work health or safety. Deciding whether to have a designated smoking area, where to put it, and how breaks work are exactly the kind of decisions that trigger this duty. Consultation means giving workers a genuine opportunity to express their views and taking those views into account before you finalise the decision.
For a smoking policy, the practical version is straightforward: share a draft, ask for feedback on the proposed areas and break arrangements, consider reasonable adjustments, and record what was agreed and what changed. Failing to consult carries its own penalty in NSW: up to 1,214 penalty units for a body corporate, which is $133,540 at the current unit value of $110. Consultation is not a paperwork chore; it is a priced obligation.
Duty three: comply with the smoke-free laws for your premises
Every state and territory bans smoking in enclosed workplaces. In NSW, the Smoke-free Environment Act 2000 (NSW) makes every enclosed public place a smoke-free area. "Enclosed" means having a ceiling or roof and being completely or substantially enclosed except for doors and passageways, so any office, lunchroom, kitchen or warehouse the public can enter is covered. What the statute adds beyond the WHS duty is precision: exact buffer distances, signage obligations and occupier offences.
Outdoor areas and buffer zones
The Smoke-free Act also bans smoking in specific outdoor areas (section 6A). In NSW these include:
- Near entrances: Within 4 metres of a pedestrian access point to a building, which catches the pavement immediately outside your front door.
- Outdoor dining: Commercial outdoor dining areas, defined to include a seated dining area and the space within 4 metres of it (section 4A), so cafe and restaurant footpaths are covered while food is served or available.
- Other outdoor spots: Within 10 metres of children's play equipment, plus swimming pool complexes, spectator areas at sporting events and public transport stops.
Other states set their own distances and lists, so check the local law for your premises before you map a designated area.
Signage
Section 9 of the Smoke-free Act requires the occupier of a smoke-free area to display the signs prescribed by the regulations, in the prescribed manner. In NSW the maximum penalty is 5 penalty units ($550) for a natural person and 25 penalty units ($2,750) for a body corporate. "No smoking" signs at entrances and in designated areas are not decoration; they are a legal requirement attached to a fine.
The occupier offence
Section 8 creates an offence for the occupier of an enclosed public place or a commercial outdoor dining area if someone smokes there. The maximum penalty is 10 penalty units ($1,100) for a natural person and 50 penalty units ($5,500) for a body corporate. There is a defence if you can show you supplied no ashtrays, matches or lighters and either did not know the person was smoking or required them to stop as soon as you became aware. That defence is worth knowing: it rewards actually supervising the space.
Work vehicles
Smoke-free statutes cover vehicles the public can use, such as taxis and hire cars. A private company ute or van is usually outside them, but the WHS duty is not: shared work vehicles where smoke lingers can expose the next driver to second-hand smoke. Banning smoking in all company vehicles, or at least in any vehicle used by more than one person, closes that gap.
Duty four: treat vaping like smoking
The object clause of the NSW Smoke-free Act states that the Act exists to reduce exposure to tobacco and other smoke "as well as aerosol or vapour (whether or not containing nicotine) generated by vaping goods". Vaping is regulated like smoking in NSW smoke-free areas, and most other jurisdictions do the same. Your policy should therefore define "smoking" to include e-cigarettes and vapes, and treat a vape break the same as a cigarette break, unless the local law in your state draws a distinction. Leaving vaping out of the policy is the most common drafting gap.
Duty five: manage breaks, discipline and personal information
Breaks come from awards and agreements, not the NES
The Fair Work Act 2009 (Cth) does not set a general entitlement to rest or meal breaks. As the Fair Work Ombudsman explains, awards, enterprise agreements and other registered agreements set the rules for paid and unpaid rest and meal breaks, including their length and timing. There is therefore no legal right to extra "smoker's breaks": a smoker is entitled to the same breaks as everyone else under the applicable award or agreement, no more.
If you choose to allow additional smoking breaks, apply the rule consistently, be clear about whether the time must be made up, and make sure the policy aligns with your rostering obligations under the award. Inconsistent break treatment is a common source of complaints and can feed into a general protections or unfair dismissal claim.
Lawful directions and fairness
A direction that nobody may smoke on the premises at any time is generally a lawful and reasonable direction. Smoking status is not, by itself, a protected attribute under Australian discrimination law. But keep the human layer in view: a worker with a medical condition affected by smoking, or a worker whose own health condition interacts with the policy, may engage discrimination and WHS duties to make reasonable adjustments. Apply the rules to everyone equally, document enforcement, and handle breaches through your usual conduct process so discipline does not become a dismissal risk.
Personal information
If you offer quit-support programs or record who participates in them, that information is health information, which the Privacy Act 1988 (Cth) treats as sensitive information with stricter collection, use and disclosure rules. Keep HR records about quit programs or medical accommodations inside your privacy framework.
What happens if you get it wrong
WHS offences carry maximum penalties that are high enough to hurt. Using NSW as the example, with the penalty unit value of $110 set by section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW):
- Category 1 (reckless or grossly negligent exposure to a risk of death or serious injury): up to 90,424 penalty units for a body corporate, which is almost $10 million.
- Category 2 (failure to comply exposing someone to a risk of death or serious injury): up to 18,128 penalty units, almost $2 million.
- Category 3 (failure to comply with a health and safety duty): up to 6,070 penalty units, $667,700.
- Failing to consult under section 47: up to 1,214 penalty units, $133,540 for a body corporate.
Smoke-free penalties in NSW are smaller but still real: $550 for smoking in a smoke-free area, up to $5,500 for an occupier who allows smoking in an enclosed public place or outdoor dining area, and up to $2,750 for missing signage. Other states and territories set their own figures.
Fines are not the whole story. Regulators can issue improvement and prohibition notices, and a serious incident involving second-hand smoke exposure can trigger a WHS prosecution, a workers' compensation claim, or both. On the employment side, inconsistent enforcement of the policy can surface in an unfair dismissal or general protections claim. The consequence of getting smoking wrong is rarely a single fine; it is usually the combination.
Compliance checklist
Work through these items and record what you have done:
- Confirm which state or territory smoke-free law applies to each site you operate.
- Map the enclosed areas and outdoor buffer zones (entrances, dining areas, play areas) on your premises.
- Decide your position: completely smoke-free, or a designated area, and write down the reasons.
- If you keep a designated area, position it away from doors, windows, air intakes and pedestrian paths, and provide disposal bins.
- Install and maintain the required no-smoking signage at entrances and any designated area.
- Write the policy covering purpose, scope, definitions (including vaping), prohibited areas, breaks, responsibilities, breaches and review.
- Consult workers on the draft and record their feedback.
- Train managers to enforce the rules consistently and document any breaches.
- Ban smoking in shared company vehicles.
- Review the policy annually and whenever the premises or the law changes.
When a lawyer should review your approach
A lawyer adds value at three points. First, before you finalise the policy: your state's smoke-free law, your awards and agreements, and your premises layout all shape what the policy should say, and a review catches gaps such as vaping, vehicles or signage. Second, if a regulator issues a notice or opens an investigation: you need advice on how to respond, on your rights, and on any prosecution exposure. Third, if a dispute has already started: an unfair dismissal or general protections claim, or a complaint that the policy is being applied in a discriminatory way, is cheaper to defend with early advice. A practitioner can also check that any health information you collect in quit programs is handled under your privacy obligations.
The gap between "no smoking indoors" and the law
The obligation most Australian employers miss is not the indoor ban. It is everything that surrounds it: the buffer zone outside the front door, the outdoor dining area, the required signage, vaping, and the shared work vehicle. A business that has banned smoking inside but ignores those is still in breach of its state's smoke-free law and arguably of its WHS duty. The first step this week is concrete: open your state or territory's smoke-free law, find the outdoor areas and signage obligations that apply to your premises type, and decide your designated-area position before you draft or update the policy. That single check turns a vague "we don't allow smoking inside" into a defensible, documented position.