Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd

The Retail and Fast Food Workers Union Incorporated (Union) filed proceedings against Tantex Holdings Pty Ltd (Tantex) alleging contraventions of the Fair Work Act 2009 (Cth) (FWA) in relation to employees of McDonald’s Australia. The Union claimed that Tantex failed to provide employees with a 10-minute paid drink break on a 4-hour shift as stipulated by the McDonald’s Australia Enterprise Agreement 2013 (Agreement). The Union further alleged that employees were denied short drink or toilet breaks outside the 10-minute break and that the right to such breaks constituted a "workplace right" under the FWA. Additionally, the Union asserted that Tantex contravened sections 340, 343, and 345 of the FWA through posts made by employees on Facebook groups.

The primary legal issues were whether employees had the right to take short drink or toilet breaks outside the 10-minute break and if such a right was a "workplace right" under the FWA. Furthermore, the court had to determine if Tantex contravened sections 340, 343, and 345 of the FWA by the contents of Facebook posts written by employees. The Union argued that the posts, which threatened to deny employees the opportunity to take a drink or use the toilet outside the designated break, constituted a threat or adverse action. Tantex, on the other hand, argued that the posts were sarcastic or satirical and not intended to threaten employees.

The court held that the Union had proven its case on the balance of probabilities. The court found that the posts contained elements of threat, sarcasm, and satire and that these posts were understood by the intended audience as threats. The court accepted that such denial of breaks could be detrimental to the health and safety of employees, especially those with cooking duties. Consequently, the court ruled that the employees had the right to short drink or toilet breaks outside the 10-minute break, and this right was a "workplace right" under the FWA. The court also found that Tantex contravened sections 340, 343, and 345 of the FWA by the contents of the Facebook posts.

The court ordered Tantex to compensate the second applicant $1,000 for the admitted contraventions of section 50 of the FWA. The parties were required to bring in short minutes of orders to give effect to these reasons for judgment within 14 days. If the parties failed to do so, the proceeding would be listed for hearing submissions as to the form of such orders. Costs were reserved for further consideration.