The 5 January 2019 Representation
91 As with its other restaurants, and for like reasons, Tantex established a Facebook group for its Windsor West restaurant. On 5 January 2019, Tantex, by its General Manager, Mr Christopher Crenicean, posted to the Windsor West Facebook group a message in the following terms (the 5 January 2019 Post):
As we all LOVE the legislation and are all clearly so hard done by …. let me clarify for you the below ENTITLEMENT!!!
We are more than happy to go with the standard 10 minute break policy as below for those crew who are all over Facebook tagging each other and commenting.
But let me clarify for you how this 10 minute break rule actually works.
If you work longer than 4 hours, you become eligible for a '10 minute break'.
So for majority of crew you actually probably don't ever qualify for a '10 minute break'
What this means is that if we implement this over our current situation, on your shift - this 10 minute break would be the only time you would ever be permitted to have a drink or go to the toilet. So I hope to god you don't get thirsty on your next shift because we just wouldn't be able to allow a drink. Fair is Fair right?
But as we go above and beyond for our people and we like to treat you guys much better than this, we allow ALL our employees irrelevant of shift length to have a drink of water as you require and have a toilet break on shift as you require.
Are we really such bad guys? Honestly!!!
It actually works better in our favour to follow this 'legislation' and keep you all working non stop.
Hope this clarifies anyone's raging concerns!
[sic, image followed and is not reproduced]
92 Mr Crenicean commenced employment with Tantex in 2013, initially as a Supervisor, managing the day to day operations of its then number of McDonald's franchised restaurants. He became General Manager in about April 2017, when that position was created. Inferentially, that creation was linked to an increase in the size of Tantex's operations as the number of its franchised restaurants grew. As General Manager, Mr Crenicean is responsible for the running of all of Tantex's McDonald's restaurants. His responsibilities include financial reporting, ensuring overall compliance and managing the operational side of the business to ensure that the restaurants are running as efficiently and cost effectively as possible. Since May 2018, he has had a People and Operations Manager reporting to him and, from April 2019, a Compliance and Operations Manager has also reported to him, in addition to the now multiple occupants of Supervisor positions (there are now more than one). In Tantex's now hierarchy, Supervisors oversee a number of restaurants with the Restaurant Managers concerned reporting to them. Ms Manteit-Mulcahy is Mr Crenicean's immediate, and only, superior within Tantex.
93 From the time of his commencement until around April 2019, Mr Crenicean engaged in an active program of restaurant visits. His estimate, which I accept as accurate, was that, over this period, he visited each restaurant, including the three in question in this proceeding, at least once per week. During these visits, he assisted the employees working in the restaurant concerned (both the Crew Members and Managers) by providing one-on-one coaching to help them improve in their roles and, in turn, improve the efficiencies and operations of that restaurant. He also visited the restaurants during busy periods throughout the day and night, including at breakfast, lunch and dinner times, to support the staff. Mr Crenicean was not, over this period, a remote figure as far as subordinate employees were concerned.
94 Over the period from 2016 to 2019 with which this proceeding is concerned, Mr Crenicean was aware that employment at Tantex's restaurants was governed by the Agreement (and remained so until February 2020 when the Agreement was terminated). He admits that he was not, however, familiar with the terms of clause 29 of the Agreement in relation to paid breaks. In my view, the 5 January 2019 Post is proof perfect of that.
95 Tantex admits that, by Mr Crenicean, it made the 5 January 2019 Post. Mr Crenicean's actions and state of mind are, for the purposes of the alleged contraventions in relation to him, those of Tantex: s 793, FWA.
96 The Union alleges that by the 5 January 2019 Post, Tantex, by Mr Crenicean:
(a) represented that the Windsor West Employees were entitled to a 10 minute break if they worked more than four hours;
(b) represented that the majority of the Windsor West Employees did not ever qualify for a 10 minute break;
(c) represented that if Windsor West Employees were afforded a 10 minute break that break would be the only time they would ever be permitted to have a drink or to go the toilet; and 7
(d) represented that Tantex could lawfully prevent Windsor West Employees from drinking water or using the toilet outside of their scheduled breaks.
[sic]
97 As to these alleged representations, the Union alleged that (a), (b) and (c) were made expressly, whereas (d) was made partly expressly and partly by implication. To the extent it was said to arise by implication, the Union alleged that it was implied from Mr Crenicean's status as a managerial employee of Tantex and from the context of the post, which was expressed to be in relation to the "legislation" and the "entitlement".
98 The Union alleged that these representations were false, in that:
(a) Windsor West Employees were entitled, under the Agreement, to a 10 minute paid drink break if they worked four hours or more (not more than four hours);
(b) the majority of the Windsor West Employees were entitled to a 10 minute paid drink break under the Agreement because their shifts were at least four hours in duration;
(c) if Windsor West Employees were afforded a 10 minute paid drink break in accordance with the terms of the Agreement, Tantex was not entitled as a matter of law, to refuse to permit employees to have a drink or go to the toilet outside of the 10 minute paid drink break; and
(d) Tantex was not entitled, as a matter of law, to prevent Windsor West Employees from drinking water or using the toilet outside of their scheduled breaks because:
(i) Windsor West Employees were entitled to breaks in accordance with cl 29 of the Agreement; and
(ii) Windsor West Employees were entitled to drink water and use the toilet outside of the breaks prescribed by cl 29 of the Agreement where necessary to ensure that they had a safe and healthy workplace.
The following were offered as particulars in respect of these alleged falsehoods:
(a) As to paragraph (a), the Union relied on clause 29 of the Agreement.
(b) As to paragraph (b), the Union relied on clause 29 of the Agreement and the roster for Windsor West, pursuant to which it alleged most employees worked shifts of at least four hours.
(c) As to paragraph (c), the Union alleged this followed from the Work Health and Safety Act 2011 (Qld) (WHS Act).
(d) As to paragraph (d), the Union alleged this followed from clause 29 of the Agreement and the WHS Act.
99 In respect of the 5 January 2019 Post, the Union alleged that representations (a) and (b) were "about":
(a) the workplace right of Windsor West employees who were covered by the Agreement to the benefit of cl 29 of the Agreement; and/or
(b) the effect of the exercise by Windsor West Employees who were covered by the Agreement of their workplace right to the benefit of cl 19 of the Agreement.
[sic]
As to representations (c) and (d), it alleged that these were "about":
(a) the workplace right of Windsor West Employees who were covered by the Agreement to
(i) the benefit of cl 29 of the Agreement; and/or
(ii) the benefit of the Work Health and Safety Act 2011 (Qld); and/or
(b) the effect of the exercise by Windsor West Employees who were covered by the Agreement of:
(i) their workplace right to the benefit of cl 29 of the Agreement; and/or
(ii) their workplace right to the benefit of the Work Health and Safety Act 2011 (Qld).
100 The Union alleged that Tantex, by Mr Crenicean, made each of these alleged representations knowing they were false, or being reckless as to their truth, offering the following particulars:
(a) Mr Crenicean was the General Manager of Tantex and had knowledge of the existence of the Agreement.
(b) The subject matter of the 5 January 2019 Post was expressed to be a clarification as to a legal entitlement of Tantex employees.
(c) The representations were made to employees in circumstances in which it can be inferred that Tantex expected the employees to rely on them.
(d) Had Mr Crenicean made reasonable enquiries as to the truth or otherwise of the representations, he would have readily identified that the representations were false.
101 As with the other Facebook posts with which this proceeding is concerned, there is a background history to the 5 January 2019 Post which is relevant so as to understand the context in which that post and thus the alleged representations were made. That there is a context, and the necessity for revealing it, is evident from the statement, "those crew who are all over Facebook "tagging" each other and commenting" in the post and from the tone of the post. Impressionistically, the tone is sarcastic, an impression the accuracy of which was frankly confirmed by Mr Crenicean in evidence.
102 On the whole of the evidence, it is inherently more likely than not, and I find, that the subject of entitlement to employees to a 10 minute break, and to toilet or drink breaks in any event, arose against the background of heightened interest by the Union in the working conditions at Tantex's and other McDonald's branded restaurants for the purposes of negotiating a new enterprise agreement covering workers in these restaurants.
103 On 4 January 2019 the Union made a post to its Facebook page, related below, about 10 minute breaks. Mr Crenicean did become aware of that post before he made the 5 January 2019 Post.
104 This background of heightened industrial interest in working conditions at McDonald's branded restaurants and, in particular, the provision of breaks in accordance with clause 29 of the Agreement was, I thought, also revealed expressly in, or by necessary inference from, the evidence of Ms Staines. Ms Staines' perspective was that of a Crew Member employee encountering all of the demands of delivering fast food service in an at peak meal times busy restaurant but none the worse for that in terms of accuracy if one remembered the benefits and limitations of this perspective. The benefit was first hand, albeit subjective experience, the burden was an absence of managerial perspective or detachment. I consider that she was an honest witness.
105 Mr Crenicean, I thought, was an essentially honest witness although he was I thought defensive in cross examination about what he had meant by the 5 January Post, his then understanding of entitlements to breaks and the deletion of the Facebook pages. Inferentially, given his rise within Tantex as its chain of franchised restaurants expanded, he was regarded by Ms Manteit-Mulcahy as an effective Manager. He struck me as having a good understanding, based on personal experience, of various Crew Member tasks and as being, understandably, performance result orientated rather than attentive to the detail of the specifications in the Agreement and the WHS Act. The sarcasm in the 5 January 2019 Post might well, I thought, be explicable by a misunderstanding born of this lack of attention to such detail. His self-confessed, later ascertainment of the true position in relation to the taking of 10 minute breaks lent, I thought, a defensive quality both to contemporary action on his part, notably, deleting Facebook groups and to the tone of his evidence.
106 In November 2018, the Union shared information on Facebook about its understanding of the right of McDonald's employees to receive a paid 10 minute break for shifts of 4 hours or more. An understanding as to the existence of such an entitlement prompted Ms Staines to take such a break on shift later in 2018. Her entitlement so to do was questioned managerially by the Manager of the Myer II restaurant. The Union continued into the New Year, 2019, to post on its Facebook page its understanding as to 10 minute break entitlements. On 4 January 2019 the Union stated in a post:
We've notified the first set of stores to McDonald's for immediate implementation of paid 10 minute breaks. It's the law and until now no- one has held them to account. If you can't see your McDonald's store on this list, it's because a member hasn't asked for it to be fixed yet. If you want your outlet to be on next week's list, join up and let us know your outlet. We exposed this, we're fixing it. Join the fighting union. www.raffwu.org.au/membership
Maccasrevolution
#fightbackwithRAFFWU
[sic]
107 The Union's 4 January 2019 post was drawn to the attention of Mr Crenicean via SMS, so he related and I accept, by a Shift Manager at the Windsor West restaurant the following day with a comment, to the effect of: "Some of the crew on my shift are talking about it and are wanting a break". Once again, Mr Crenicean's relating this had a hearsay quality as to the content of the SMS but it was tendered for operative, not assertive, purposes and, as such, relevant, very relevant in my view, to his state of mind. That is because, in my view, the receipt of this intelligence via SMS was a tipping point or catalyst for Mr Crenicean and resulted in his making the 5 January 2019 Post. That post was reactive to a situation which had been building within Tantex's workforce generally since November 2018. Given Mr Crenicean's then overarching managerial role within Tantex's restaurant operations, he was, inferentially, sensitive to this development. Tantex's confession to what can only be regarded as a systemic denial of 10 minute breaks to Ms Staines in contravention of the Agreement during the course of her employment at the Myer II store and the terms of the 5 January 2019 Post are, more likely than not, and I find, not coincidental. When a General Manager misunderstands the true position under a governing enterprise agreement, such systemic denial is hardly a surprising consequence.
108 Mr Crenicean, I find, made the 5 January 2019 Post very deliberately and with the intention that it be read by employees generally at Tantex's Windsor West restaurant and understood by those employees as conveying the true position in relation to the taking of 10 minute breaks in particular and drink or toilet breaks generally.
109 In my view, the 5 January 2019 Post did contain representation (a) as alleged by the Union, ie a representation that the Windsor West restaurant employees were entitled to a 10 minute break if they worked more than four hours. Further, that representation was, on the true construction of clause 29.1.1 of the Agreement, false. The meaning and effect of that clause was that, if an employee worked between 4 and 5 consecutive hours, the employee was entitled to a 10 minute, paid drink break.
110 Tantex did not dispute that the 5 January 2019 Post contained such a representation and that this was the true construction of the Agreement. Rather, it invited the Court to dismiss what it described as a "mis-statement" and "trifling". In his regard, it relied on what it submitted was the "de minimus principle" (derived from the Latin maxim, de minimus non curat lex - the Law does not concern itself with trivialities), referring by way of example to the recognition of the maxim and a discussion of cases involving its application by Gordon J when a judge of this Court in Georges v Seaborn International (Trustee) (2012) 288 ALR 240 (Georges v Seaborn International), at [132] - [133]. Tantex submitted that, "The mis-statement over the circumstance giving rise to the entitlement to a 10 minute paid break (the completion of 4 hours or the completion of more than 4 hours) was trifling".
111 With respect, some care needs to be taken with the judgment given in the original jurisdiction in Georges v Seaborn International, as an appeal against that judgment was allowed: Georges v Seaborn International Pty Ltd (2012) 206 FCR 408. However, the correctness of her Honour's observations in relation to the de minimus maxim is not expressly gainsaid in any of the judgments delivered in the appellate jurisdiction.
112 Of the cases cited by Gordon J in Georges v Seaborn International, the most pertinent, in my view, in understanding the content and application of the maxim called in exculpatory aid by Tantex is Shipton, Anderson & Co v Weil Brothers & Co [1912] 1 KB 574 (Shipton, Anderson v Weil Bros). That is because it arose against the background of an alleged breach of an agreement, a term incorporated by statute into that agreement and the application of the maxim to the construction and application of the agreement and of the statutory term. Of course an enterprise agreement to which the FWA applies is not a private contract but there are, nonetheless, some apt analogies and contrasts to be drawn in my view.
113 The facts of Shipton, Anderson v Weil Bros, of which the headnote provides an accurate summary, were as follows. Under a contract for the sale of a cargo of wheat weighing 10% more or less than 4,500 tons, the plaintiff sellers, Shipton Anderson & Co, tendered a cargo weighing 55 lbs. more than the maximum quantity of 4,950 tons. The sum payable for the 55 lbs. at the contract price would have been about 4s, but the sellers never claimed payment thereof. The defendant buyers, Weil Bros & Co rejected the whole cargo solely upon the ground that the quantity tendered was 55 lbs. in excess of the contract quantity. Mr Justice Lush held that, as the quantity in excess was so trifling and the sellers had not claimed the price thereof, the sellers had substantially performed the contract, and the buyers were not entitled to reject the cargo under s 30(2) of the Sale of Goods Act 1893 (UK) (Sale of Goods Act), which provided that, "where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer …. may reject the whole". In so doing, Lush J both adopted a business efficacy construction of the contractual term providing for the delivery of a particular weight range as well as a purposive construction of s 30(2) of the Sale of Goods Act. As to the former, Lush J stated, at 576, "the excess quantity is trifling, so trifling that it is quite impossible to suppose that any business man would regard it as in any way affecting the substance of the contract or as making the contract any the more or any the less an advantageous contract to enter into". As to the latter, Lush J stated, at 577, "the right to reject is founded upon the hypothesis that the seller was not ready and willing to perform, or had not performed, his part of the contract. The tender of a wrong quantity evidences an unreadiness and unwillingness, but that, in my opinion, must mean an excess or deficiency in quantity which is capable of influencing the mind of the buyer. In my opinion, this excess is not". Critical to the outcome was that the seller had never sought payment based on the excess weight delivered, only payment based on the range for which the contract provided.
114 Recently, in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951, at [16] - [17], Flick J offered an accurate, helpful summary, derived from earlier authorities, of the principles which attend the construction of an enterprise agreement, which I respectfully adopt:
16 In construing an award or an enterprise agreement the task is one of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted: Kucks v CSR Ltd (1996) 66 IR 182 at 184 ("Kucks"). In a passage oft cited, Madgwick J there summarised this approach as follows:
Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
See also: Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30]-[31], (2014) 318 ALR 54 at 58-59 per Tracey J. The task of construing the terms of an award or enterprise agreement "begins with a consideration of the ordinary meaning of its words" but those words "must not be interpreted in a vacuum divorced from industrial realities": City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53] and [57], (2006) 153 IR 426 at 438-439 and 440 per French J (as his Honour then was) ("Wanneroo").
17 The general approach to the interpretation of enterprise agreements has more recently been summarised by Tracey, Bromberg and Rangiah JJ in WorkPac Pty Ltd v Skene [2018] FCAFC 131, (2018) 264 FCR 536 at 580 as follows:
[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
115 In my view, the "industrial reality" which underpins the text of clause 29 of the Agreement is an appreciation by the parties to that agreement of the demands of the employment covered by that agreement and a related need for employees to have short breaks and, as the case may be, a meal break, depending upon the length of time worked. Of course, that appreciation has manifested itself in particular, textual specifications of periods of time but these are the deliberate choices of the parties as to how and when those demands ought to be ameliorated. The clause obviously has a beneficial purpose in relation to the welfare of employees but there is also a benefit conferred on Tantex in having a workforce that is neither over-fatigued nor underfed. The short breaks or, as the case may be, meal breaks are meant to be in paid time but it would be a mistake, for the reasons just given, to measure the worth of these breaks solely in monetary terms.
116 Once the purpose of clause 29 is understood, the Latin maxim, de minimus non curat lex is inapplicable to its construction and application. On no practical, sensible, industrial construction of the clause could it be said that an error which resulted in the over-working of a worker by denial of a consensually determined break for his or her welfare and to the financial benefit of an employer could be dismissed as trifling. The error made by Tantex, via Mr Crenicean, in the 5 January 2019 Post was no mere, trifling mis-statement. Rather, it was, in the prevailing circumstances, a reckless falsehood and a serious one at that.
117 Mr Crenicean was not, in my view, deliberately dishonest in making representation (a) in the 5 January 2019 Post. He was, however, reckless. The particulars offered by the Union, set out above, as to why it alleged he was reckless are each established on the evidence. This was a very calculated, generic representation by a Senior Manager, which purported to specify true entitlements of employees so as to quell known workforce unrest and, not coincidentally, paint Tantex in a favourable light. Necessarily, Mr Crenicean must have known that it would be relied on by his target audience. There is no great complexity in the language of clause 29 of the Agreement. Mr Crenicean claimed, and I accept, that he did re-read clause 29 before making the Post. However, that reading must have been a very cursory one, because his evidence was that he thought the 10 minute paid breaks under clause 29 of the Agreement could be taken in "increments", something not mentioned in the clause at all. I thought he struggles in cross-examination to explain what he meant by this. The Union submitted that he was alive to the possibility that he was wrong in his reading of the clause. However, that submission was not, with respect, supported by the transcript reference to his oral evidence given by counsel. He admitted that he did nothing in advance of making the 5 January Post to test the correctness of his views by, for example, consulting a lawyer, an industrial relations specialist or anybody from the franchisor, McDonald's Australia. Inferentially from the overall scale of its operation by 2019, Tantex would readily have been able to procure external legal or industrial advice before the making of the 5 January 2019 Post. To this one might add that, by 5 January 2009, Mr Crenicean had, within Tantex's managerial ranks, a dedicated People and Operations Manager. He did not consult that Manager in advance for advice. Neither did he consult Ms Manteit-Mulcahy. The Agreement does not posit the 10 minute break as an alternative to discretionary toilet and drink breaks which I find Mr Crenicean had in mind when he made the post. He was aware as at 5 January 2019 of this discretionary practice and, I find, must have made the representation that this practice was an alternative to the Agreement's 10 minute break by closing his eyes to the obvious absence of any foundation for this in his haste to close down the employee agitation about what the Union was asserting was a right. He was utterly careless and without caution in making this representation.
118 The entitlement to a 10 minute break for which clause 29 of the Agreement provided was, undoubtedly, a workplace right for the purposes of the FWA. Representation (a) was also, undoubtedly, "about" the right to such a break.
119 It necessarily follows that the Union has proved a violation of s 345 of the FWA constituted by the making of representation (a) in the 5 January 2019 Post.
120 As to representation (b), Tantex submitted that it had not been proved that it was false, because it had not been proved that a majority of employees at the Windsor West restaurant worked 4 hours or more in a single shift. This is true. Accordingly, representation (b) is not proved.
121 As to representation (c), read in context it is premised upon Mr Crenicean's erroneous understanding of the meaning and effect of clause 29 of the Agreement, as found in representation (a). In effect, what he was conveying is that, if Tantex implemented a 10 minute break for employees, even if they worked four hours or less (and thus were not, so he had asserted, entitled to such a break), it could then refuse to allow employees any other time off during their shift for the purpose of having a drink of water or going to the toilet. Thus, representation (c) is, in my view, made out.
122 The challenge which Tantex made in respect of representation (c) was not that it had not been made but rather that it was not false. The Union's case was that the falsity flowed from the position under either or each of clause 29 of the Agreement and the WHS Act. Tantex disputed this on these bases.
123 Tantex's first premise, which flows from clause 29.1.4 of the Agreement, was that an employee was to take the paid drink break within the time specified in clause 29.1.1 but as directed by a Manager or Shift Supervisor. Put another way, it submitted that an employee could not, within a four hour shift, take the drink break whenever he or she wished but at managerial discretion depending on work demands. Subject to the qualification that the employee must be permitted to take the break at some stage, I accept this.
124 Tantex then submitted that neither by clause 29 nor elsewhere did the Agreement require it to give effect to a request of a Windsor West restaurant employee to take a drink or to go to the toilet. As to a drink, I understood this submission to refer to the taking of a drink outside the prescribed drink break. So understood, this is true. Further, a toilet break is mentioned not at all in clause 29. Tantex further submitted that there was nothing in the contract of employment with such an employee which required it to give effect to such a request. This, also, is true.
125 Tantex's further submission was that neither by s 19 nor otherwise did the WHS Act, either expressly or impliedly, confer an entitlement on a worker to take a drink or to go to the toilet at any point during their work at a workplace.
126 That s 19 of the WHS Act does not expressly confer such a right may be accepted. That section does not, in terms, mention either drink or toilet breaks. It is cast at a much higher level of abstraction in terms of the duty of an employer. By s 19(1)(a) of the WHS Act, a person conducting a business or undertaking, and thus Tantex, "must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person".
127 Tantex was also bound by reg 41 of the Work Health and Safety Regulation 2011 (Qld) (WHS Reg), made under the WHS Act, to "ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities".
128 There is not much point in imposing a statutory duty on an employer to provide, materially, toilets or drinking water if an employee cannot access the same. Neither does it seem to me an answer to say that the Agreement provides for breaks after specified numbers of hours of work and that the required facilities can be accessed during these breaks. So they can. But the breaks are termed "drink break" and "meal break", the titles being indicative of their purpose. In particular, neither has as its purpose the use of toilet facilities. Neither does a need to use toilet facilities necessarily arise with particular, predictable, temporal regularity. Denial of access as needed to toilet facilities or drinking water could, as a matter of ordinary life experience, have adverse health and safety ramifications for an employee and thus enliven the primary statutory duty of an employer found in s 19 of the WHS Act. On the other hand, it is not hard to see how some employees might under the guise of toilet or drink break needs avoid the undertaking of duties for which they are employed. Reconciliation of this latter consideration with this primary statutory duty would, as its specification indicates, be within the realm of what is "reasonably practical".
129 The ingenuity of counsel did not yield any particular precedent authority on the subject of a right to take either toilet or drink breaks. Neither could I find any Australian authority on the subject. The point did, however, arise in the United States of America in Zwiebel v Plastipak Packaging Inc 36 IER Cases 975 (Ohio: Court of Appeals, 3rd District 2013) (Zwiebel v Plastipak Packaging), in the context of an alleged wrongful termination of employment case in which the basis for termination was the taking of excessive toilet or "restroom" breaks during a particular shift. In upholding a conclusion reached at trial that the termination was lawful, the Ohio Court of Appeals did not dissent from the joint position of the parties that a conclusion of the trial judge that "there is a public policy that requires the employer to make available toilet facilities, although reasonable restrictions may be placed on access" flowed from an occupational health and safety specification in relation to the provision by an employer of toilet facilities similar to reg 41 of the WHS Reg. The upholding of the termination turned on what was regarded on the facts as an unreasonable conduct in breach of a reasonable restriction. The restriction was that the employee should seek another to cover for him while absent.
130 The approach in Zwiebel v Plastipak Packaging accords with what seems to me necessarily to follow from reading s 19 of the WHS Act in conjunction with reg 41 of the WHS Reg. I thought the Union put the correct position well in its submission that, "Facilities are not 'accessible' if they are only available during scheduled breaks".
131 In turn, what follows from this is that representation (c) was, contrary to Tantex's submission, false. Mr Crenicean's absolute denial of any such right did not state the true position. Tantex was obliged, even outside the 10 minute drink break (or the meal break for that matter) to allow an employee access during paid time to the toilet and drinking facilities it was obliged to provide, although it was permissible for it to place a reasonable restriction on that access. What might amount to a reasonable restriction is inherently fact specific, as Zwiebel v Plastipak Packaging illustrates. One might think, for example, that the refusal of access to time off for a drink within a few minutes after the clause 29 mandated drink break was a reasonable restriction but, on a particularly hot day in circumstances where air conditioning in a kitchen area was failing (an environment Ms Staines related in evidence had occurred at the Myer II restaurant, although, in fairness, Mr Crenicean disputed this), to deny a sweating Crew Member in the kitchen that time off might not be reasonable. Equally, for an employee just to dash off for a drink leaving hamburger patties or fries to burn might not be reasonable. One might hope and expect that occasion such as Zwiebel v Plastipak Packaging for determining whether employer or employee conduct was or was not reasonable would be infrequent. That is because, as in human affairs generally, in relations between employer and employee, the reasonable conduct of one tends to engender the reasonable conduct of the other.
132 The right to access the toilet or a drink of water was, in my view, a workplace right for the purposes of the FWA. Further, representation (c) was "about" that right.
133 It does not necessarily follow from this that representation (c) was recklessly made by Tantex by Mr Crenicean. Mr Crenicean was taxed at considerable length about his understanding of entitlement of employees to breaks be they 10 minute drink breaks or separate breaks for water drinking or toilet access. I thought this answer he gave about the 5 January 2019 Post was honest, once one realised that it was premised upon a quite erroneous, reckless understanding of the operation of clause 29 of the Agreement, "I want them to understand that they could have breaks whenever they needed to because their comments were saying they weren't getting at all". In isolation, that does reflect a correct understanding of the position in law, if not overstates it to the benefit of an employee, because the employer is entitled to impose a reasonable restriction. The difficulty is that this position is, contrary to Mr Crenicean's understanding, in addition to the operation of clause 29 of the Agreement. Even the cursory reading of the Agreement Mr Crenicean made would have disclosed there was no support at all for a view that short discretionary toilet or drink breaks were an alternative to the 10 minute break. Once again, Mr Crenicean has, in effect, "shot from the hip" in his haste to close down the employee "tagging", closing his eyes to the obvious. Representation (c) was made recklessly. The contravention has been proved.
134 Tantex's defence in respect of the alleged contravention of s 345 of the FWA grounded in representation (d) replicated its defence in relation to representation (c), ie that it was able, as a matter of law, to prevent the Windsor West restaurant employees from taking a drink or going to the toilet outside of scheduled breaks. For reasons already given, this submission was wrong in law. Equally, representation (d), like representation (c), was premised upon a recklessly erroneous view of clause 29 of the Agreement by Mr Crenicean. Only by closing one's eyes to the obvious could one regard short toilet or drink breaks as an alternative to the 10 minute break. Representation (d) has therefore been proved to be recklessly false.
135 Tantex also submitted that, in any event, in "assessing whether there was a contravention of section 345 and whether the Court should make a declaration concerning a contravention of section 345, the Court should take into account the lack of evidence relating to the materiality of the 5 January 2019 Post and the lack of evidence of loss". It is true that there is no Windsor West restaurant equivalent of Ms Staines in terms of a claimant for compensation. However, as I have mentioned above in relation to the acknowledged contraventions, there is a public interest served by these proceedings. I consider that the reckless making of a false representation as to a workplace right by a Senior Manager of the holder of multiple franchises of a well-known, restaurant chain to offer a paradigm example of a case calling at the very least for declaratory relief.