New Zealand

Progressive Meats was charged with an offence for infringing s5(1) of the Smoke-free Environments Act 1990 which requires employers to take all reasonably practicable steps to ensure there is no smoking in the workplace. This was an appeal against a District Court decision that Progressive Meats had infringed s5(1) in relation to a smoking room it had set up in its meat processing plant. Prior to entering a conviction, the Judge stated a case for the High Court. The question was whether the smoking room came within the definition of "workplace" in the Act.

The majority of Progressive Meats' employees were smokers. Prior to a change in the law relating to the hygiene requirements of the plant, the smokers were able to smoke outside during their breaks. However, the changes in the hygiene requirements made it impossible for smokers to go outside during their breaks, because the cleaning and changing of clothes required to do so would take up all of their available time. To get around the problem Progressive Meats set up a separate smoking room which was constructed to ensure that none of the smoke generated would in any way affect the health of any other worker.

In the District Court decision below, the Judge found that while the smoking room was not an actual core part of the workplace it fell within the extended definition of "workplace", being a common internal area forming part of a workplace. While the smoking room was ancillary, it was just as important for the undertaking of the core business as other facilities such as toilets and stairwells.

In the High Court, Progressive Meats argued for an interpretation of "workplace" which recognised that it was complying with the spirit of the law. The Court rejected this argument because it would have allowed smoking to a greater extent than the wording of the Act allowed. The Court said there was no basis for reading down the Act - if the Act had unfortunate consequences, it was a matter for Parliament to address by amending the legislation. The Court therefore answered the stated question "yes".

This decision was subsequently appealed and upheld by the Court of Appeal (see: Progressive Meats Limited v Ministry of Health (22 April 2008)).