Federal Court of Australia provides relief for McDonald’s workers; upholds right to water, toilet breaks and sick leave
The recent case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd  FCA 1258 has been highly publicised in Australia as an important decision regarding “workplace rights”, affecting potentially hundreds of thousands of workers nationally.
A worker at a Brisbane franchise of McDonalds, 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 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 Enterprise Agreement did not provide the paid break as an alternative to discretionary toilet and drink breaks, but in addition to, and that Occupational Health & Safety laws also required the provision of access to toilets and drinking water, considered to only qualify as appropriately “accessible” if they were available throughout the entirety of a shift, as opposed to during scheduled breaks.
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.
Harmers Workplace Lawyers has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.harmers.com.au.
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