Rest breaks during work hours: the issues
While there is no provision for rest breaks in the National Employment Standards (NES), an employer with employees covered under a modern award or enterprise agreement, are usually required to provide certain designated rest periods to their employees. There may also be a provision in an employee’s individual contract of employment that provides for a meal or rest break.
Reference should be made to the relevant modern award, enterprise agreement or contract of employment to determine an employee’s entitlement to a paid or unpaid rest break during ordinary hours, when the employee works overtime or when work is performed on weekends or public holidays.
Provision for the taking of a meal break during each day or each shift is made under most modern awards and enterprise agreements.
In a number of cases, the period of the meal break is not specified but it is common for an unpaid meal break to be between 30 minutes and one hour.
In the case of continuous shift workers, the entitlement is usually a 20-minute, paid crib break. Unless otherwise specified by the relevant industrial instrument, a reference to a ‘meal break’ generally means an unpaid break; whereas, reference to a ‘crib break’ generally means a paid break. An unpaid break is not counted as part of an employee’s ordinary hours of work; whereas, a paid break is included in ordinary hours.
Because a meal break is unpaid, the employee is free to leave their work area or the workplace. Any direction to perform work during an unpaid meal break will attract overtime penalty rates or, if provided, time off in lieu of overtime. Because ‘crib’ is a paid break from work the employee may be required to remain within the work area and directed to work during cases of emergency, such as any event that may result in loss of production (eg machine breakdown and essential repairs).
Provision is usually made that places a limit on the number of hours an employee can work before a meal or crib break must be taken. This is usually a maximum of 5 hours (or 6 hours by agreement).
Required to work — entitlement
Employees required to work during their unpaid meals break would be entitled to the appropriate overtime penalty rate, while the overtime penalty rate may continue until the employee has a break for a meal.
The instrument may allow payment at ordinary time where work performed during an unpaid meal break is for the purpose of attending to an emergency. It is also generally implied that a shift worker may be directed to perform work during a paid crib break to attend to an emergency.
The employer may also wish to stagger the taking of meal breaks for operational reasons, which is generally permissible under industrial instruments.
There has been no statutory entitlement to a rest break since 1 January 2010 with the introduction of the NES. This means there is no specific requirement to provide a meal break for an award/agreement-free employee.
While there is no statutory requirement for rest breaks for award/agreement-free employees, their employer has a ‘duty of care’ statutory responsibility under the relevant state or territory occupational health and safety legislation where an employee works long hours without a break. Therefore, it is important for the employer to monitor the potential risk to the health and safety of the individual employee, as well as the potential risk to other employees (and the general public).
Morning/afternoon rest break
Some modern awards provide for a morning and/or afternoon paid rest period, one which is regarded as being part of an employee’s ordinary hours of work.
The Clerks — Private Sector Award 2010 provides that an employee must be allowed two 10-minute rest intervals to be counted as time worked on each day the employee is required to work not less than eight ordinary hours. The rest break is to be taken at a time suitable to the employer taking into account the needs of the business. An employee who works between 3 and 8 hours on a day is entitled to one ten-minute paid rest break.
Other modern awards that provide for a paid morning and/or afternoon rest period include the Storage Services & Wholesale Award 2010, General Retail Industry Award 2010, Hospitality Industry (General) Award 2010 and Building and Construction General On-Site Award 2010. Reference should be made to the relevant industrial instrument to determine an employee’s entitlement to a morning and/or afternoon rest interval.
Rest periods and overtime
A modern award may require an employee to take a rest period(s) in relation to overtime work. This may relate to a rest period at the end of an employee’s ordinary hours before commencing overtime or when an employee is able to return to work on the successive day after working overtime.
The Manufacturing and Associated Industries and Occupations Award 2010 provides that where an employee is to work more than one and a half hours overtime at the end of their ordinary hours an employee is entitled to a 20-minute break paid at ordinary pay before commencing overtime, as well as a paid rest break of 20 minutes (at the appropriate overtime penalty rate) after each additional 4 hours of overtime.
Also, a common provision in modern awards prescribes that an employee (other than a casual) must have at least 10 consecutive hours (usually 8 hours for continuous shift workers) off duty between the work of successive days when overtime is worked. Where an employee does not have the required rest break before commencing work the next day, the employee would normally be paid at the appropriate penalty rate until relieved from duty.
A modern award may also provide a paid rest break when overtime is worked on a weekend.
The Clerks — Private Sector Award 2010 provides that an employee who works more than 4 hours overtime on a Saturday morning must be allowed a paid rest interval of 10 minutes, without loss of pay.
Holiday and Sunday work
A modern award may provide for a rest period when an employee works overtime on a Sunday or a public holiday.
The Manufacturing and Associated Industries and Occupations Award 2010 provides that a day worker who works overtime on a Saturday, Sunday or public holiday, or on a rostered day off, is entitled to a 20-minute rest break after each 4 hours of overtime, the first break is payable at the employee’s ordinary rate of pay.
State or territory regulations
There are certain occupations where rest breaks may be subject to state or territory legislation or regulation.
These laws usually govern safety provisions that apply to commercial transport operations, such as drivers of heavy transport vehicles, or drivers of public conveyances such as buses, trams and trains. Usually these regulations stipulate the maximum period an employee can drive without a break, as well as maximum periods of driving on a daily, weekly and monthly basis.
In the case of the transport industry, ‘driving’ may include any time spent driving, loading and unloading, assisting with the loading and unloading, refuelling, maintaining, repairing and inspecting any heavy vehicles.