The Federal Court has found a major McDonald’s operator in Brisbane breached the Fair Work Act, when managers took to Facebook to make a series of spontaneous posts misrepresenting entitlements.
In one message, the general manager of the Brisbane franchisee used a private Facebook workplace group to respond to demands to permit workers to utilise a paid 10-minute rest break entitlement in their agreement.
Stating he would clarify “how this 10 minute break rule actually works”, the manager said most would never qualify as they would only be eligible if they worked longer than a four-hour shift.
But if Tantex did agree to provide it, he said the 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,” he said, adding “Fair is fair right?”
In another message a manager said Tantex asked for four hours’ notice of non-attendance and “will not accept a sick call past 10pm for an open”.
The same manager posted in December last 2018 that “Christmas and Boxing Day shifts are final” and there are “no shift swaps or sick calls on public holidays”.
Tantex responded to the legal challenge launched by the Retail and Fast Food Workers Union (RAFFWU) and a former employee by admitting that it denied the worker paid drink breaks between May 2017 and June last year, and has since repaid her.
It otherwise defended its messages, denying they constituted adverse action or coercion and characterising any errors as minor.
Justice Logan accepted that the general manager did not intentionally misrepresent break entitlements but he said the Facebook message contained a “reckless falsehood and a serious one at that”.
Given the agreement does not provide the paid break as an alternative to discretionary toilet and drink breaks, he said the general manager must have closed his eyes to the “obvious absence of any foundation for this in his haste to close down the employee agitation” over the entitlement.
“He was utterly careless and without caution in making this representation.”
Justice Logan said OHS laws also required access to toilets and drinking water, agreeing with RAFFWU’s view that “facilities are not ‘accessible’ if they are only available during scheduled breaks”.
In addition to health and safety concerns, he found an “element of cruelty in a threat that entails denying to a worker on a shift of up to and including 4 hours duration no opportunity either to take a drink or to go to the toilet outside a designated 10 minute break”.
Turning to compensation for non-monetary loss for the former Tantex worker, who has already been compensated for the lost breaks, Justice Logan awarded her $1000.
The Federal Court has flagged a possible November hearing to consider penalties.
RAFFWU secretary Josh Cullinan considers the case “replicable” for hundreds of thousands of other McDonald’s workers thought to be working under similar conditions.
He added that the union is “delighted” the decision includes a rare coercion finding, plus compensation for non-monetary loss in addition to the amount Tantex had voluntarily repaid.
