Hi Renata – I work in a warehouse on a large worksite and management has told us our breaks start as soon as we are released from our station. There is a 5min walk to get to the toilet and break room and that time is included in our breaks. What are laws on this? Our 15min breaks is used up by 10min of walking. And we have been told we must use this time to use the toilet?
From an OHS perspective, it is not acceptable that your employer restrict your access to toilets. Health risks arising from restricted toilet access include urinary tract problems, kidney infections and digestive issues.
Your employer has a duty under s.21 of the OHS Act to provide a working environment that is safe and without risks to health, including the provision of adequate facilities for the welfare of employees.
Your employer has a duty to ensure that facilities are readily accessible to workers – how your employer achieves this can be guided by the WorkSafe publication Compliance code: Workplace facilities and the working environment.
If you have a Health and Safety Representative (HSR) in your workplace, raise this matter with them for resolution via the OHS Issue Resolution process. Your employer will need to consult with employees and their HSRs about this matter.
Of course, knowing your rights is only half the battle – you’ve got to have the power to enforce your rights under the law, and maintain a cooperative working relationship with your employer. Your employee-elected health and safety representative has rights and powers to take issues up with management and follow through to get things done. If you do not have an HSR in your work area I recommend contacting your union directly for support and guidance through this process.
You can find out more about employee representation in our publication Getting OHS Representation Right - A Guide for Workers - OHS Reps. WorkSafe Victoria also publish the Guide to Part 7 - Employee representation handbook for workplaces to guide employers – it contains lots of useful information and HSRs, issue resolution and consultation.
From an industrial relations perspective, some workplaces deal with the issue of walking/travel time to breaks by negotiating and documenting extra time before and after breaks into their Enterprise Agreements to accommodate the distance required to travel to break rooms on large worksites.
In the 2020 case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258, workers at a franchised McDonald’s Restaurant complained that they weren’t getting their scheduled breaks and their employer responded by telling them that if they wanted to strictly enforce the 10-minute break rule, that their break would “be the only time you would ever be permitted to have a drink or go to the toilet”. The judge in this case found that Tantex had breached the Fair Work Act and stated, “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.”
This case helped to establish that –
- Access to toilets and drinking water is a basic workplace right
- These facilities should be available when needed, not just during breaks
- Restricting access to these facilities can create health and safety risks
Rest breaks should be actual rest time where there is no work-related activity – walking to and from your break area is a work-related activity. I suggest that you raise this issue with your employee union delegate for discussion at the next agreement negotiations.
