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Toilet breaks: now a workplace right

In the recent deci­sion of Retail and Fast Food Work­ers Union Incor­po­rat­ed v Tan­tex Hold­ings Pty Ltd (2020), the Fed­er­al Court held that employ­ees have a work­place right to toi­let breaks while at work.

The Court was forced to decide the issue after the General Manager of a McDonald’s franchise made a Facebook post to crew members informing them the Employer (Tan­tex Hold­ings Pty Ltd – Tantex) had no obligation to let them use the bathroom outside scheduled breaks.

The Retail and Fast Food Workers Union accused Tantex of “cruel and inhumane working conditions” after it claimed they were attempting to rob employees of their right to paid bathroom and water breaks.

Justice John Logan of the Federal Court described the ruling as unprecedented in Australia. He stated he could not find any cases on the right to toilet breaks and water breaks so he looked to a decision from a court in Ohio (USA) for guidance.

Justice Logan said that it made little sense for state workplace health and safety laws to require employers to provide bathrooms and drinking facilities, but not let staff use them, within limits, when it was a reasonable time to go. In analysing the issue, Jus­tice Logan stated:

“There is not much point in impos­ing a statu­to­ry duty on an employ­er to pro­vide, mate­ri­al­ly, toi­lets or drink­ing water if an employ­ee can­not access the same.”

So what’s the takeaway for employers? Under work health and safety laws, an employer has the obligation of:

  • providing and maintaining a work environment that is without risk to health and safety
  • providing adequate and accessible facilities for the welfare of workers to carry out their work, and
  • monitoring the health of workers and the conditions of the workplace for the purpose of preventing illness or injury.

The recent Court decision means employers should recognise:

  • The right to access the toi­let or a drink of water dur­ing work, even out­side rostered meal or rest breaks, is a work­place right.
  • In certain cir­cum­stances, how­ev­er, it could be rea­son­able for the employ­er to restrict the exer­cise of that right by the employ­ee. Employ­ers might be able, with­in rea­son, to expect employ­ees to arrange cov­er or oth­er­wise mit­i­gate the impact of them tak­ing a toi­let break. 
  • Employ­ees can­not sim­ply use the pretext of toi­let breaks as an excuse for avoid­ing work.

While most workplaces see harmonious relationships between employees and management, there are times when both don’t see eye to eye. When this happens, it costs you: in time, productivity and individual and team morale. So it’s smart to consider calling in someone who knows HR to smooth things over and get everyone back on track. That’s where Bare Bones Consulting can help. Check out our troubleshooting page then give us a call today. Your first consultation with us is free. And we’ll even let you use our bathroom…that’s your right. 

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Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.