Whether you are an employee or employer, it is important to be aware of what entitlements employees have in regards to toilet breaks. This can ensure that employees do not have too little or too much time at the restroom. In this article, we’ll outline what the rules are when it comes to employees and taking bathroom breaks.
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Entitlement to Toilet Breaks
In 2020, the Federal Court of Australia (FCA) made a decision which outlined the specifics of toilet break entitlements. The court stated that employees are entitled to use the toilet and to drink water during the paid work hours. This means that employees do not have to wait until their scheduled break times to go to the toilet or drink water.
However, the court also ruled that employers can reasonably restrict this entitlement. This is to ensure that the entitlement is not abused or that work performance is affected. But what is a reasonable restriction and what is not? The court stated that what was reasonable would depend on the circumstances and the working environment.
For example, it is reasonable for employees to have more frequent drink/ toilet breaks when the weather or working environment was particularly hot. On the other hand, employers are allowed to place restrictions to mitigate work disruption, such as not leaving the shop unattended when going to the toilet. Another reasonable restriction would be to not leave the food to burn when going to the restroom.
Other Break Entitlements
Employees have the right to go on brief toilet/drink breaks that are not in the scheduled rest break or meal break. A rest break is generally a paid 10-minute break and a meal break is an unpaid 30-minute break. The type of industry determines the required number of breaks for the employee. It also depends on the hours the employee has worked. The employees’ employment contract must also be taken into consideration. The contract may state the number of breaks and the length of the breaks. Meal breaks are usually 30 minutes and unpaid but the agreement contract can differ and offer employees paid meal breaks or longer breaks. For example, in the retail industry, employees have the following break entitlements.
| HOURS WORKED | PAID REST BREAKS | UNPAID MEAL BREAKS |
| Less than 4 | 0 rest breaks | 0 meal breaks |
| 4 or more, but less than 5 | 1 rest break | 0 meal breaks |
| 5 or more, but less than 9 | 1 rest break | 1 meal break |
| 9 or more | 1 or 2 rest breaks | 1-2 meal breaks ( if a second meal break is not provided than employee must have 2 rest breaks) |
These standards apply to many other industries.
You can find further information about how long employees’ breaks should be by clicking here. Or, for a deeper understanding of paid breaks, click here.
The Australian Government’s Fair Work Ombudsman website also has further details about employee entitlements.
Summary
Employees are entitled to toilet breaks to the extent that it is reasonable in their specific work environment. If you are unsure about employee entitlements, it is best to consult an employment lawyer who can provide tailored legal advice to your situation.
