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Dear Comrade: Can the boss take away my toilet break?

Dear Comrade is Megaphone's advice column, where union members and officials respond to your questions about work, activism, and the world. Submit your questions here.

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Dear comrade, I am a bus driver on a late-night service. The company has told us the run/route will be changed next week. The main break of 20 minutes on the new run will be at a stop where there are no toilet facilities for either male or female drivers. Can the company do this?

- Bus-ting


This isn't very satisfactory, is it?

There are a couple of things to raise here with the company employer.

If the company is changing the route/run and this is going to have any OHS implications, then it had a legal duty to consult when proposing this change – the consultation had to be with any elected HSRs, with or without any employees directly affected. Do you have an elected HSR? If so, then you need to take this up with them in the first instance as they have powers to not only raise the matter, insist on consultation, but take actions if it’s not resolved. If you don’t have an HSR, then the employer still had a legal duty to consult with affected employees. See: Duty to consult.

Your employer has a duty of care under s21[2][d] to provide, so far as is reasonably practicable, adequate facilities. See Duties of Employers. While it might not be reasonably practicable to provide toilet facilities at that stop, it’s clear that previously the run was organised in such a way as to ensure drivers had access to toilets. This is what the Compliance Code, which employers must either implement or do more than advised, to ensure they are complying with their duties under the Act: Mobile, temporary and remote work 107.

Many employees are required to work remotely from the employer’s primary workplace, either in other workplaces or moving between workplaces. Sales representatives, labour hire or agency employees, bus and truck drivers, visiting community welfare and health care employees, park rangers, forestry employees and security personnel are examples of employees who are mobile or are required to work remotely.

How to comply

108. Employers need to ensure that mobile and remote employees have reasonable access to amenities and facilities. For example, procedures need to be developed that provide mobile employees with access to dining facilities, hygienic storage of food and water, and toilets. This may include ensuring arrangements are made at customers’ or suppliers’ workplaces or the provision of information regarding publicly located facilities.

So, it is absolutely not reasonable for your employer to just change the run and remove your access to toilets during your break – the code says that procedures need to be developed - and in consultation with HSRs/employees – to ensure that you have access to toilets, water and so on. You need to request formally that the change to the run not be implemented until such time as there has been consultation and something worked out to ensure that drivers have access to toilet facilities.

- Renata Musolino, Victorian Trades Hall Council OHS Unit

*Megaphone Journal sometimes edits details of a Dear Comrade letter to preserve the anonymity of our letter writers. But all stories are based on genuine queries.

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