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Misrepresenting leave and break entitlements for workers

The Fair Work Act 2009 (Cth) prohibits the making of false or misleading representations about another person’s workplace rights; it protects workers from adverse action for having, exercising or proposing to exercise a workplace right; and it prohibits organising, taking or threatening to take any action against a worker with the intention of coercing the worker in exercising a workplace right.

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In the case of Retail and Fast Food Workers Union v Tantex Holdings (No 2) [2020] FCA 1644, a McDonald’s franchisee (Tantex Holdings Pty Ltd) has been fined $82,000 for the conduct of its general manager, who:

  • made various false and misleading representations to workers about their workplace rights in relation to personal/carer’s leave and rest breaks, and
  • threatened workers who exercised their right to take a rest break (which in of itself constituted adverse action).

The general manager told workers they were not permitted to be absent from work due to illness or injury during the Christmas public holidays and they were only permitted to have a drink or go to the toilet during their 10-minute paid break provided by the enterprise agreement.

Statements made included “I will not accept a sick call past 10pm for an open” and “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”.

In handing down its decision, the Federal Court noted that an employer who chooses to have the benefit of a young workforce takes on those benefits, as well as whatever burdens attend such a workforce. In this case, that includes those who (because of immaturity and inexperience) do not appreciate a need for certainty of commitment to their shifts, and call in sick for competing educational and/or social commitments.

Lessons for employers

  1. When employers make representations to workers about the terms and conditions of their employment, they have a statutory obligation to be accurate.
  2. Employers have work health and safety obligations to allow workers access to toilet and drinking facilities and cannot restrict such access to scheduled breaks. An attempt to restrict such access amounts to subjecting workers to cruel and inhumane working conditions.
  3. Power imbalances between management and workers is a factor considered by the court in determining appropriate penalties. In this case, many of the workers were young and vulnerable in taking on their first employment.

Written by Nes Demir

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Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.

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Friday Workplace Briefing – Finale

Join Andrew Douglas (FCW Lawyers), and Karen Luu (Found Consulting) live and in-person for our last Friday Workplace Briefing of 2021, as they discuss their HR and Safety Predictions for 2022.

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