Pub­li­ca­tions

Right to toi­let break a relief for employees

In the recent deci­sion of Retail and Fast Food Work­ers Union Incor­po­rat­ed v Tan­tex Hold­ings Pty Ltd [2020] FCA 1258, an Aus­tralian court (name­ly the Fed­er­al Court) has, for the first time, held that employ­ees have a work­place right to use the toi­let and drink water while at work.

This deter­mi­na­tion was made by the court in con­sid­er­ing whether the employ­er, Tan­tex Hold­ings Pty Ltd (Tan­tex), which oper­ates a num­ber of McDon­ald’s restau­rant fran­chis­es, had, in a num­ber of posts on Face­book, con­tra­vened the gen­er­al pro­tec­tions pro­vi­sions of the Fair Work Act (the Act) (includ­ing by mak­ing false or mis­lead­ing rep­re­sen­ta­tions in breach of sec­tion 345 of the Act).

Jus­tice Logan of the Fed­er­al Court held that even though employ­ees had an express right, pur­suant to the applic­a­ble enter­prise agree­ment, to a 10 minute drink break and/​or 30 minute meal break after work­ing a spec­i­fied num­ber of hours, they were also enti­tled to be giv­en a rea­son­able oppor­tu­ni­ty to have a drink of water or to use the toi­let out­side these spec­i­fied drink and meal breaks.

In reach­ing this con­clu­sion, Jus­tice Logan con­sid­ered the terms of the applic­a­ble enter­prise agree­ment, the Work Health and Safe­ty Act 2011 (Qld) (WHS Act) and the Work Health and Safe­ty Reg­u­la­tion 2011 (Qld) (WHS Reg). His Hon­our accept­ed that there were no express terms in the applic­a­ble enter­prise agree­ment, WHS Act or WHS Reg that con­ferred a spe­cif­ic right for an employ­ee to use the toi­let or drink water out­side man­dat­ed breaks while working.

Rather, the WHS Act impos­es a broad­er oblig­a­tion, specif­i­cal­ly that a per­son con­duct­ing a busi­ness or under­tak­ing, in this case Tantex,

must ensure, so far as is rea­son­ably prac­ti­ca­ble, the health and safe­ty of work­ers engaged, or caused to be engaged by the person.”

Reg­u­la­tion 41 of the WHS Reg expands upon this oblig­a­tion and requires a per­son con­duct­ing a busi­ness or under­tak­ing to ensure, so far as is rea­son­ably prac­ti­ca­ble, the pro­vi­sion of ade­quate facil­i­ties for work­ers, includ­ing toi­lets, drink­ing water, wash­ing facil­i­ties and eat­ing facil­i­ties.”

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. Nei­ther does it seem to me an answer to say that the Agree­ment pro­vides for breaks after spec­i­fied num­bers of hours of work and that the required facil­i­ties can be accessed dur­ing these breaks. So they can. But the breaks are termed drink break” and meal break”, the titles being indica­tive of their pur­pose. In par­tic­u­lar, nei­ther has as its pur­pose the use of toi­let facil­i­ties. Nei­ther does a need to use toi­let facil­i­ties nec­es­sar­i­ly arise with par­tic­u­lar, pre­dictable, tem­po­ral reg­u­lar­i­ty. Denial of access as need­ed to toi­let facil­i­ties or drink­ing water could, as a mat­ter of ordi­nary life expe­ri­ence, have adverse health and safe­ty ram­i­fi­ca­tions for an employ­ee and thus enliv­en the pri­ma­ry statu­to­ry duty of an employ­er found in s 19 of the WHS Act. On the oth­er hand, it is not hard to see how some employ­ers might under the guise of toi­let or drink break needs avoid the under­tak­ing of duties for which they are employed. Rec­on­cil­i­a­tion of this lat­ter con­sid­er­a­tion with this pri­ma­ry statu­to­ry duty would, as its spec­i­fi­ca­tion indi­cates, be with­in the realm of what is rea­son­ably prac­ti­ca­ble’ ”.

As there were appar­ent­ly no Aus­tralian author­i­ties on the ques­tion of the right of employ­ees to use the toi­let or con­sume drinks, Jus­tice Logan referred to a deci­sion of the Ohio Court of Appeals, Zwiebel v Plas­ti­pak Pack­ag­ing Inc. In con­sid­er­ing that deci­sion, his Hon­our stated:

In uphold­ing a con­clu­sion reached at tri­al that the ter­mi­na­tion was law­ful, the Ohio Court of Appeals did not dis­sent from the joint posi­tion of the par­ties that a con­clu­sion of the tri­al judge that there is a pub­lic pol­i­cy that requires the employ­er to make avail­able toi­let facil­i­ties, although rea­son­able restric­tions may be placed on access’ flowed from an occu­pa­tion­al health & safe­ty spec­i­fi­ca­tion in rela­tion to the pro­vi­sion by an employ­er of toi­let facil­i­ties sim­i­lar to reg 41 of the WHS Reg. The uphold­ing of the ter­mi­na­tion turned on what was regard­ed on the facts as an unrea­son­able con­duct in breach of a rea­son­able restric­tion. The restric­tion was that the employ­ee should seek anoth­er to cov­er for him while absent.”

Jus­tice Logan adopt­ed the sub­mis­sion of the union that, Facil­i­ties are not acces­si­ble’ if they are only avail­able dur­ing sched­uled breaks.”

His Hon­our then pro­vid­ed an expla­na­tion of how this right would apply in prac­tice for the rel­e­vant employ­ees. In doing this, Jus­tice Logan pro­vid­ed an expo­si­tion that pro­vides guid­ance for all employers:

Tan­tex was oblig­ed, even out­side the 10 minute drink break (or the meal break for that mat­ter) to allow an employ­ee access dur­ing paid time to the toi­let and drink­ing facil­i­ties it was oblig­ed to pro­vide, although it was per­mis­si­ble for it to a place a rea­son­able restric­tion on that access. What might amount to a rea­son­able restric­tion is inher­ent­ly fact spe­cif­ic, as Zwiebel v Plas­ti­pak Pack­ag­ing illus­trates. One might think, for exam­ple, that the refusal of access to time off for a drink with­in a few min­utes after the clause 29 man­dat­ed drink break was a rea­son­able restric­tion but, on a par­tic­u­lar­ly hot day in cir­cum­stances where air-con­di­tion­ing in a kitchen area was fail­ing… to deny a sweat­ing Crew Mem­ber in the kitchen that time off might not be rea­son­able. Equal­ly, for an employ­ee just dash off for a drink leav­ing ham­burg­er pat­ties or fries to burn might not be rea­son­able. One might hope and expect that occa­sion such as Zwiebel v Plas­ti­pak Pack­ag­ing for deter­min­ing whether employ­er or employ­ee con­duct was or was not rea­son­able would be infre­quent. That is because, as in human affairs gen­er­al­ly, in rela­tions between employ­er and employ­ee, the rea­son­able con­duct of one tends to engen­der the rea­son­able con­duct of the other.”

Accord­ing­ly, his Hon­our held that the right of an employ­ee to access the toi­let or a drink of water was a work­place right for the pur­pos­es of the Act.

Con­clu­sion

It seems extra­or­di­nary that it has tak­en until 2020 to clear­ly estab­lish that there is a legal right for employ­ees to use the toi­let and drink water at work. While some might see that as evi­dence of exten­sive Dick­en­sian or dystopi­an work prac­tices, it could be argued, more pro­saical­ly, that it is such an obvi­ous propo­si­tion that it has not need­ed to be estab­lished judi­cial­ly until now (and even then it was actu­al­ly for the pur­pose of deter­min­ing whether cer­tain social media state­ments were false or mis­lead­ing rep­re­sen­ta­tions in breach of the gen­er­al pro­tec­tions pro­vi­sions of the Act).

Notwith­stand­ing the fun­da­men­tal nature of the right, there is still, how­ev­er, a bal­ance to be struck between the exer­cise of the right by employ­ees and the duty of employ­ees to prop­er­ly and dili­gent­ly per­form their duties.

As such, while indi­vid­ual cas­es will large­ly turn on their own facts, there are some guid­ing prin­ci­ples for employ­ees and employ­ers that emerge on the issue from this decision:

  1. The right to access the toi­let or a drink of water dur­ing work, even out­side rest breaks, is a work­place right.
  2. In some cir­cum­stances, how­ev­er, it might be rea­son­able for the employ­er to restrict the exer­cise of that right by the employ­ee. For instance, employ­ers might be able, with­in rea­son, to expect employ­ees to arrange cov­er or oth­er­wise mit­i­gate the impact of tak­ing a toi­let break. 
  3. Employ­ees can­not sim­ply use the pre­text of need­ing to use the toi­let as a device or strat­e­gy for avoid­ing work.
  4. The need for toi­let or drink breaks might depend on the con­di­tions of the work­ing envi­ron­ment. For instance, a hot work­ing envi­ron­ment might neces­si­tate more fre­quent oppor­tu­ni­ties for employ­ees to take a drink.

Ulti­mate­ly, it is to be hoped that employ­ers and employ­ees can exer­cise com­mon sense and rea­son­able­ness in rela­tion to such a basic yet fun­da­men­tal­ly impor­tant issue. In sit­u­a­tions where they can’t, there is prob­a­bly not much hope for oth­er aspects of the employ­ment relationship.