WHEN NATURE CALLS... PATRICK JUDGE Senior Industrial Officer
“I’ve been rostered on for five hours straight,” said James.1 “They won’t even let me have any time to go to the toilet!”
Justice Logan found that there were multiple contraventions of the Fair Work Act and awarded compensation to the worker concerned.
Disputes over these sorts of matters in our schools are rare, but they do occur. In June 2020, the Federal Court was called on to answer this very question. Workers at a McDonald’s in Brisbane, represented by their union, claimed that their employer had misled them about their entitlement to go to the toilet or get a drink during their shift.
What does this mean for James and other teachers/LSAs?
Tantex, the employer, had asserted in a message to all staff that a ten-minute drink break would be “the only time you would ever be permitted to have a drink or go to the toilet.” The workers, through their union, argued that the work safety laws allowed them to take toilet breaks or get drinks outside of rostered breaks. The Federal Court agreed with the union, noting: “Denial of access as needed to toilet facilities could… have adverse health and safety ramifications” and “facilities are not accessible if they are only available during breaks”. Of course, there are limits to this right. For example, it would not be reasonable for a staff member to leave Big Macs grilling or French fries frying unsupervised while they popped around the corner for a drink. They would need to wait until it was safe to leave or have another staff member take over.
You can go to the toilet whenever you need to, so long as you make reasonable provision for the safe care of your class. This might involve asking a colleague to look after the class for a moment. If your managers do not make provision for you to be able to access the bathroom, they may be in breach of work health and safety laws. You are required to give the best notice you can of an absence on personal leave, but you cannot be required to give that notice by any particular time of day. Finally, it is worth noting that, unlike McDonald's restaurants, schools are professional workplaces predominantly staffed by degree-qualified adults. No school should be in the position of being compared to McDonald's as a work environment. If a dispute over matters as trivial as toilet breaks has come up, all parties may want to reflect on Justice Logan’s advice that: “in relations between employer and employee, the reasonable conduct of one tends to engender the reasonable conduct of the other”.
The judgment also considered a representation that employees needed to notify their supervisor if they were unwell at 10pm the night before an “open” (morning) shift. This, too, was incorrect. While you should provide as much notice as you can of an unanticipated absence on personal leave, employees may become unwell late in the morning or even during their shift.
A real query to the AEU office, but not the member’s real name.
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