Legal Update

Federal Court provides relief for McDonald’s workers; upholds right to water, toilet breaks and sick leave

Authors: Amy Zhang, Amelia Dowey & Hannah Lawson

The recent case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258 has been highly publicised in Australia as an important decision regarding “workplace rights”, affecting potentially hundreds of thousands of workers nationally.

The Federal Court of Australia has found that the right to take a short drink or toilet break outside of scheduled breaks is a “workplace right”, and that a McDonalds franchise (through its general manager) coercively and recklessly misrepresented this right over a Facebook post was in contravention of national workplace legislation.

A worker at a Brisbane franchise of McDonalds, Ms Staines, represented by the Retail and Fast Food Workers Union (‘the Union’), launched a legal challenge against her employer alleging that she was denied the paid toilet and drink breaks that she was entitled to under the McDonald’s Australia Enterprise Agreement 2013 (‘Enterprise Agreement’).

In the Federal Court in August this year, Justice John Logan found that a manager at the franchise not only misrepresented and denied workers their rights to water, toilet breaks and sick leave, but also took coercive adverse action against the workers. Crucially, these rights were found to be “workplace rights” for the purposes of the Fair Work Act (Cth) (‘the Act’), and the manager’s post in a Facebook group was held to qualify as a threat to take action because the exercise of the “workplace right” or otherwise to prevent the exercise of the “workplace right,” contravening the Act.

Workers at the franchise had demanded to utilise their entitlements to 10-minute rest breaks during shifts, as outlined in the Enterprise Agreement, in addition to their legally mandated scheduled breaks. In response to these demands, the general manager wrote in the private Facebook workplace group that workers would only qualify for these breaks if they worked longer than a four-hour shift, and that even if they qualified; the 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”.

In separate messages, a manager of the franchise also indicated that workers would not be able to call in sick to work past 10 pm the night before and were not allowed to swap shifts or call in sick on public holidays.

The Court clarified that the entitlement to a 10-minute break provided by the Enterprise Agreement did not substitute an employer’s obligation to provide discretionary toilet and drink breaks. An employer’s obligation to provide discretionary toilet and drink breaks, arising from Occupational Health & Safety laws, was found to be in addition to the aforementioned entitlement provided by the Enterprise Agreement. In reaching this finding, the Court opined that Occupational Health & Safety laws required the provision of access to toilets and drinking water, and that these provisions were only truly “accessible” if they were available throughout the entirety of a shift, as opposed to during scheduled breaks. As such, the manager’s absolute denial of any such right outside the 10-minute scheduled break was held to be sufficiently reckless to constitute a false or misleading representation.

Justice Logan found that the general manager’s Facebook message contained a “reckless falsehood and a serious one at that”, so that he was “utterly careless and without caution in making this representation.” Moreover, he found an “element of cruelty in a threat that entails denying to a worker on a shift of up to and including 4 hours duration no opportunity either to take a drink or to go to the toilet outside a designated 10 minute break”.

The Facebook messages were found to be in breach of multiple sections of the Act. The franchise was found to be in breach of section 345 for the reckless false and misleading representations of the workplace rights, and sections 340 and 343 for the nature of the messages; being adverse, coercive actions against the employees that were entitled to these workplace rights.

The worker was compensated by the franchise for the paid breaks and awarded a further $1000 by the Court for non-monetary loss. The franchise may also face penalties for the breaches under the Act.

The Court’s decision has also set in motion an investigation into whether Ms Staines’ case is representative of a systematic failure by McDonalds in denying paid rest breaks to its workers across its franchises, the findings of which could lead to a class action against the company.

This case highlights that employers need to be conscious that employees have a workplace right to take bathroom breaks or have a drink of water even outside of scheduled break times, consistent with an employer’s duty to ensure, so far as is reasonably practicable, the health and safety of its workers. Employers must also take care not to misrepresent or deny an employee’s access to workplace rights, particularly where such denial or misrepresentation could, as a matter of ordinary life experience, have adverse health and safety ramifications. Failure to heed these warnings may result in significant pecuniary penalties and awards of compensation against the company.

For more information or if you require advice and assistance regarding the above, please contact our Harmers team on +61 2 9267 4322.

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