by Michael Byrnes, Swaab
In the recent decision of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd  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.
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.
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