Do New Zealand Workers Have The Right To Toilet Breaks?

Having toilet breaks during work sounds like a pretty basic and common entitlement. In fact, you wouldn’t think that it’s necessary for a case to come around to confirm this basic right. 

However, the recent case against a ‘reckless’ McDonald’s franchisee in New Zealand is a reminder that even these necessities can be ignored in a fast-paced environment, and it’s important for employers to understand their obligations to employees in relation to health and safety. 

Before we go through the details of the case, it’s important to understand how McDonald’s has set up their employee entitlements in New Zealand. 

McDonald’s Employee Entitlements

Under the McDonald’s New Zealand Enterprise Agreement, all McDonald’s employees are entitled to a paid 10 minute break when they work between four to nine hours. 

If employees work longer than nine hours, they are then entitled to two 10 minute breaks (this doesn’t include their meal breaks for working more than 5 hours). 

However, a recent Facebook post by a McDonald’s franchise in New Zealand declared they were not obliged to let staff use the toilet outside of their scheduled breaks. In other words, those 10 minute breaks were the only opportunity employees got to use the bathroom or drink water. Any other request to use the toilet would be denied because, technically, those are ‘work hours’. 

Denying employees their right to a toilet break can actually constitute a breach of the employer’s duty of care—but don’t worry, we’ll cover this shortly. First, let’s discuss the case that everyone’s talking about. 

What Was The McDonald’s Case About?

The Unite Union brought the case against a McDonald’s franchise in New Zealand on behalf of a former employee. The Union alleged that the employee had been denied their 10 minute paid drink and bathroom breaks; an entitlement which was outlined in the enterprise agreement. 

The employee complained that their work was ‘fast-paced, hot with a constant smell of food’ and that ‘the environment was stressful and demanding’. As such, it was held that, “the right to access the toilet or a drink of water was, in my view, a workplace right.” It was added, “it was unconscionable…absolutely to deny workers an ability to use the toilet when required or to drink water as needed.” 

It was also commented that statute requires employers to provide toilet facilities for work health and safety reasons, but it would be absurd to provide this if employees were not given reasonable access to such facilities. 

The franchise admitted that they had, in fact, denied the employee these breaks during their employment with them. Accordingly, they were ordered to pay compensation and it was ruled that New Zealand workers have the right to drink and toilet breaks.

What Are The Employer’s Duties?

If we shift our focus from the McDonald’s enterprise agreement for a moment, we can still see that the employer has duties under the Health and Safety at Work Act 2015 (NZ). 

Looking specifically at the Health and Safety at Work Act 2015 (NZ), we are told that employers have a broad duty to ensure the health and safety of their employees. So, how serious is this duty when it comes to toilet breaks?

Duty Of Care

According to WorkSafe New Zealand, this duty includes providing employees with the appropriate rest breaks to relieve fatigue and eat meals. They also explain that workers must be able to have a toilet break when needed. 

If an employer denies any of these rights, like in the McDonald’s case, the employer is technically breaching their duty of care by putting their employee’s health at risk. After all, not being able to use the bathroom or drink water when needed does pose some serious risks to a person’s health. 

WorkSafe New Zealand also pointed out that where the work involves high temperatures or monotonous work, employees have a greater need for toilet breaks and water. As such, an employer’s duties to their employees will depend on the actual environment and nature of work being done. 

But of course, health and safety obligations are not limited to these basic necessities. For example, if your employees are working from home, you’d need to know how to create a safe workplace for your employees remotely – you can read more about this here. 

Health and safety obligations are essential to every workplace and should be carefully considered no matter what kind of work you’re providing. 

Need Help?

An employer’s duty of care to their employees is one of the most important aspects of the employment relationship. 

Whether it be providing adequate work breaks or minimising safety hazards in the workplace, your health and safety considerations are worth looking at in detail, especially in light of the changes we’re experiencing due to COVID-19. 

If you’re an employer and you’re not too sure about your obligations to your employees, don’t stress! 

We’ve got a team of lawyers who are more than happy to help you out. You can reach us at [email protected] or contact us on 0800 002 184 for a free chat about your employer obligations. 

---