In a novel general protections dispute the Federal Court has affirmed the rights of workers to have a toilet break!

A McDonald’s franchisee, Tantex Holdings Pty Ltd, has been fined $82,000 in total by the Federal Court of Australia for multiple breaches of the Fair Work Act (“the Act”) in failing to allow its workers 10-minute water and toilet breaks, and threatening them via Facebook when they complained [1].

Facts

The workers were entitled to paid 10-minute breaks for shifts longer than 4 hours but less than 5 hours under their enterprise agreement and raised this with their employer. Their manager posted in a Facebook group acknowledging that an employee who worked longer than 4 hours became eligible for a 10-minute break but then made the following threat:

“…this 10-minute break would be the only time you would ever be permitted to have a drink or go to the toilet. So I hope to god you don’t get thirsty on your next shift because we just wouldn’t be able to allow a drink. Fair is Fair right?”

Decision

The Federal Court held that section 345 of the Act had been breached as the threat amounted to a reckless misrepresentation that if the workers were afforded a 10-minute break, that break would be the only time they would ever be permitted to have a drink or go to the toilet.

Sections 340 (protection) and 343 (coercion) were also found to have been breached in making the threat.

It was made very clear by the Court that Tantex was obliged, even outside of the 10-minute drink break (or any meal break) to allow an employee access during paid time to the toilet and drinking facilities it was obligated to provide, although it was permissible for it to place reasonable restriction on that access.

The Court also pointed out that Tantex was bound by regulation 41 of the Work Health and Safety Regulation 2011 to ensure as far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities.

Implications for Employers

  • An employer is obliged to allow workers drink and toilet breaks, even outside of their entitled breaks and only reasonable restrictions may be placed upon this; and
  • This obligation also arises out of an employer’s statutory duty under Work Health and Safety Regulation to provide adequate facilities for workers including toilets and drinking water.

[1] Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd (2020) 72 AILR 103-220; [2020] FCA 1258.

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