Hi Renata – I am being targeted for taking too long on toilet breaks and my boss said that I need to go the bathroom only during breaks, as in during my tea-break. Is this right?
Thank you for your question about break times and access to toilets. It is unacceptable that your employer seeks to restrict access to toilets during working hours and you are absolutely correct to question this – in fact, check out our latest TikTok about toilet breaks at work - We're talking 💩 | We Are Union | TikTok.
In the 2020 case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258, workers had 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, then their break time 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
From an OHS perspective, it is not acceptable that your employer restricts your access to toilets. 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. Health risks arising from restricted toilet access include urinary tract problems, kidney infections and digestive issues.
Your employer also has a duty to ensure that facilities are readily accessible to all 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 HSRs about the workplace facilities and amenities.
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. If you don’t know which union covers your industry you can check the ACTU site Which is the union For You? | Australian Unions.
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 about HSRs, issue resolution and consultation.
