Employees are entitled to a set number of paid rest breaks or unpaid meal breaks during their work governed by the relevant award or industry standard. Some employment contracts may also specify more generous breaks which apply to those individuals. During breaks times, employees are entitled to drink water or visit the bathroom.
But, can employers prohibit water or bathroom visits outside of allocated breaks? According to the recent case of Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd [1], the answer is no.
Occupational Health and Safety legislation within Australia requires employers to provide adequate facilities for employees, so far as is reasonably practicable [2]. The Federal Court of Australia held that for facilities to be accessible, they must be available outside of scheduled breaks. Therefore, an employer who attempts to prohibit access to these facilities outside of those breaks may be breaching their statutory duty to provide employees with a safe working environment. As a result of this decision, any adverse action like dismissal taken against an employee for drinking water or using the toilet may be unlawful.
An employer may be entitled to place reasonable restrictions on access to toilet breaks but what amounts to reasonable restriction is ‘inherently fact specific’. For example, the Court mentioned that refusing an employee time off for a drink within minutes surrounding an allocated break may be reasonable, but that same refusal might be unreasonable if it were a hot day and air conditioning was broken. The demands of the work performed might also be relevant; for example, a chef leaving food to burn in the middle of cooking would likely be unreasonable.
If your employer has attempted to restrict your water or bathroom breaks, they may be breaching Occupational Health and Safety legislation. Furthermore, if you believe your employer has taken adverse action against you for the taking of these breaks, you may be eligible to file for a General Protections Claim with the Fair Work Commission. Whether your employer has breached legislation can be a difficult determination to make, especially if they allege they have only placed reasonable restrictions on breaks. For information on your relevant award and whether employer rules amount to reasonable restrictions, seek advice from an employment lawyer.
[1] Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd (2020) 299 IR 56.
[2] See e.g., Reg 41 Work Health and Safety Regulation 2011 (QLD); s 21(2)(d) Occupational Health and Safety Act 2004 (Vic).