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QLD: McDonald's franchisee fined for not allowing workers water, toilet breaks or sick leave

A McDonald's franchisee has been fined $82,000 for the conduct of its managers, who threatened young workers regarding their right to water and toilet breaks, and the right to take sick leave.

Federal Court Justice John Logan found Tantex Holdings Pty Ltd recklessly failed to discharge the "core managerial function" of correctly understanding and applying the legalisation and industrial instruments that regulated the terms and conditions of the employment of its workforce.

The Retail and Fast Food Workers Union and a junior Tantex worker sued Tantex: they alleged the company engaged in unlawful adverse action and coercion after the young worker wanted to take a 10-minute paid break, as provided by the enterprise agreement. A general manager of the company, which owned a number of McDonald's stores in Queensland, posted a message on a store employees' Facebook group in January 2019 stating that if Tantex implemented the policy, this break "would be the only time you would ever be permitted to have a drink or go to the toilet".

In September this year, Justice Logan upheld the claims against Tantex, finding employers had a WHS obligation to allow workers access to toilet and drinking facilities and could not restrict such access to scheduled breaks. He found Tantex also made false representations about taking personal leave, when a store manager said on another Facebook post that workers were not permitted to be absent from work due to illness or injury during the 2018 Christmas public holidays.

Justice Logan said underlying each of its breaches was a "managerial failure in responding to particular operational challenges and pressures". He said when an employer chose to make representations to workers about the terms and conditions of their employment, it had a statutory obligation to be accurate. The company failed to do this, and there were at least two occasions that should have forced it to pause and properly consider the correctness of its position. 

Justice Logan stressed that employers needed to be sensitive to the power imbalance between a company and a young worker that occurred when such a worker asserted a workplace right. "Even if one were disposed not to react to the assertions of an individual worker, the union's emphatic adoption of that same position and advocacy for it ought to have occasioned this and at least a careful, studied reading of the clause, if not the taking of advice," he said. "Tantex had multiple potential sources of such advice, either in-house from its human resources staff, from the franchisor or, based on its apparent financial resources, from external legal or industrial relations advisers.

"The threat made by Tantex by [the manager] on 5 January 2019 was a sinister one. There is a quality of cruelty to workers about it. Its object was to quell agitation about a right to take a break in accordance with... the enterprise agreement. The threat did hit its target," Justice Logan said. He said the union and the young worker "have each well-served the public interest" through their case. Source: OHSAlert. More information on Breaks and Drinking water

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