In a recent Federal Court decision of Retail and Fast Food Workers Union Incorporated V Tantex Holdings Pty Ltd, the Court held for the first time that employees have a workplace right to use the toilet and drink water while at work over and above any award or workplace agreement provision. 

Tantex Holdings Pty Ltd (Tantex) operates a number of McDonald’s fast food restaurant franchises. The owner, Tantex, had a workplace agreement that provided that if workers were working for less than four hours, they were not entitled to a paid drink or meal break. If they worked a shift for five hours but less than nine hours, they were entitled to a ten-minute paid drink break and one meal break of at least thirty minutes but not more than sixty minutes. If they worked for nine hours or more, they had two ten-minute drink breaks or two meal breaks of at least thirty minutes but not more than sixty minutes. 

The problem arose as to whether or not the employees were entitled to go to the toilet or drink water over and above what had been agreed to in the workplace agreement. 

The case was presided by His Honour Justice Logan wherein he held that whilst the employees had an agreement in place pursuant to the workplace agreement of a ten minute drink break and/or a thirty minute meal break depending on their hours, they were also entitled to be given a reasonable opportunity to have a drink of water or to use the toilet outside the specific drink and meal breaks. 

This may all seem petty in the scheme of things, but if you are busting to pee, then it is good to know that you can without jeopardising your employment. The same might apply if you are working in hot conditions and need a drink of water, then you need to be provided with a reasonable opportunity to have that drink of water. 

His Honour in coming to that decision, was mindful of the Work Health and Safety Act 2011 (Qld) (WHS) provides that employers must, as reasonably practicable, ensure that the health and safety of their workers is looked after. It then follows that employers, as far as reasonably practicable, provide facilities that are adequate including toilets, drinking water, washing facilities and eating facilities. His Honour 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… 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 section 19 of the WHS Act.” 

It does seem hard to believe that it has taken up until now to be able to establish at court that there is a legal right for employees to use the toilets and drink water at work however, in all situations and in accordance with the law, every case turns on its own facts and circumstances. Clearly there needs to be a balance of employer’s responsibilities and employees’ rights regarding their respective obligations to each other. 

Obviously, the need for toilet and drink breaks will depend on the conditions of work and environment, as some avenues of employment may acquire increased drinking of water for occupational health and safety reasons than others. 

As is everything in life, these problems can be resolved if they are discussed and a common sense solution is found to which is a basic but fundamental issue for all of us. 

James Paton.

Paton Hooke Lawyers, Taree

(Sounds pretty fundamental! How much did that cost in legal fees? Ed.)