Smoking ban lights fire under employees

Company says complete smoking ban on its property was to promote health and productivity

This instalment of You Make the Call looks at an employer who tried to implement a total smoking ban on its property, much to the consternation of the union.

Invista Canada decided it wanted to completely ban smoking on the premises of its manufacturing facility in Kingston, Ont. The facility included a complex of buildings and large sections of vacant land. While smoking was already banned by law in and around the actual workplace, employees were still allowed to smoke on the property away from the buildings. Invista’s new policy prohibited employees from smoking anywhere on land owned by the company. Because breaks weren’t long enough for employees to leave the large property, it essentially prevented them from smoking during working hours.

Invista said the motivation for the ban was related to health and safety and economic concerns. It found evidence of smoking in areas of the facility where it was not allowed and potentially dangerous. Keeping tobacco products off the premises completely would help stop that. The employer also felt preventing employees from smoking at work would make them smoke less and possibly quit, which would lead to healthier and more productive employees.

Invista told the union during collective bargaining in January 2007 of its intentions to ban smoking. No formal provision regarding smoking was put in the collective agreement, but the union asked for a delay in the ban until May 1 and Invista granted it. There was an additional delay and on July 30 Invista advised its employees the ban would come into effect on Sept. 1. It also offered assistance for any employees who had difficulties adjusting.

The union grieved the ban, saying it hadn’t agreed to it in negotiations and Invista didn’t have the right to make such a change under the collective agreement. It argued smoking was a “private recreational choice” and completely banning it would “impose a substantial personal burden” on the 25 per cent of Invista employees who smoked. Invista said smoking had effects on the health and productivity of employees as well as the safety of the workplace and it had the right to make a positive change to benefit the company. Despite the fact smoking had been allowed on its property for a long time, the employer said the “clear evidence of harm” smoking brought its employees allowed it to stop it in order to protect its interests. It also said the collective agreement allowed the employer to make provisions for the health of employees during work hours.
You Make the Call

Was Invista entitled to implement a total ban on smoking without providing for it in the collective agreement?
Was the ban contrary to the collective agreement and unfair to employees?

If you said Invista was entitled to implement the ban, you’re right. The board found though smoking privileges were not mentioned in the collective agreement, Invista discussed it during negotiations and the union asked for a delay without contesting it. Invista had an economic interest in the ban, the board said, as healthier employees would be more productive and take less sick days. The collective agreement also allowed the company to make changes for employee health and there was nothing that prevented Invista from implementing the ban.

“No one, today, would expect to be able to smoke at work, nor to demand, as a ‘right,’ ventilated rooms or smoke shacks, or other concessions to their habit — although these may well be a legitimate item for collective bargaining,” the board said. “It is not without significance that it is the employer’s property, so that the right of a property owner to control what goes on in his own backyard, also has to be factored into the equation.”

For more information see:

Kingston Independent Nylon Workers Union v. Invista Canada, 2007 CarswellOnt 9156 (Ont. Arb. Bd.).

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