It seems there are two issues here – the primary issue being the failures around the all-gender toilet, i.e. not accessible and/or not kept in hygienic, safe, secure and working order, and, to a lesser extent the failure to provide a women’s toilet inside as they do for the men.
Your employer has a duty under s.21(2)(d) of the OHS Act to provide adequate facilities for the use of employees, regardless of where they are working. Where your employer does not own the building in which you work, they are still required to ensure adequate facilities for employees.
So, what does ‘adequate facilities’ mean? We have an overview of the topic on our Toilet facilities - what should workplaces have? - OHS Reps page. There are clear requirements around numbers of toilets and what must be equipped in toilet facilities. WorkSafe Victoria also publishes the Compliance code: Workplace facilities and the working environment which offers guidance to employers on the standards to which facilities should be maintained.
In the Compliance Code at section 44 it states, “Employers should consider the needs and make-up of the workforce and must consult with employees when deciding whether the facilities are adequate for the welfare of all employees, so far as is reasonably practicable.” It also details at appendix D the numbers of toilets required (and the specific male / female / all gender ratios) and requires that facilities are cleaned regularly (sections 34, 35 and 42).
In your specific situation the location of the toilet that women employees can use is of less significance than the accessibility of the toilet – e.g. do the PPE requirements to use the toilet present an unreasonable difficulty in accessing the toilet? Controls your employer may consider include having the inside toilet modified and re-designated as an all-gender toilet, as well as establishing an improved cleaning regime to ensure that all toilets are in a clean, hygienic and easily accessible state.
The first thing to do with any health and safety concern is to report it to your employer via your company’s hazard reporting process. Your employer then has a duty under s73 of the OHS Act to resolve the issue within a reasonable time. HSRs have powers under the OHS Act to ensure that your employer consults with them and resolves OHS issues in accordance with OHS Issue Resolution procedures.
Work with the other HSRs at your workplace (and across the State if they are experiencing the same issues) to collectively address this issue. Contact your union organiser for support and guidance to gather evidence of this issue (perhaps a small survey of your DWG members, a site map and some photos are a good start) and negotiate with your employer to bring the facilities up to Compliance Code standards.
This specific issue is in present in many industries, and several unions are already working on getting employers up to speed to ensure all workers have reasonable access to the facilities they require for their health and safety. You may be interested in the RTBU’s report It’s A Bloody Mess showing that three quarters of women working in Australian transport are suffering health problems because they can’t access clean, safe or private toilets while on the job. The ETU issued the Nowhere To Go report highlighting the very same issues. And although the AMWU’s report Women’s Voices From The Floor looks at many factors affecting women in male dominated industries, access to toilets and sanitary bins were flagged by 29.6% of the report participants as a barrier to staying in their industry.
For more information about women’s access to toilets in workplaces, see our Workplaces for Women Equality Resources – Access to basic amenities.
As well as being a physical health hazard, not being able to access suitable toilet facilities may also be a psychological or psychosocial hazard, or discrimination, or another unlawful workplace situation. Employers need to consider other relevant laws (both state and federal) that may also apply to providing adequate workplace facilities.
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