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Can you work through your lunch break?

Can a part-time employee opt to work a six-hour shift without a break?
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Can you work through your lunch break?

Can you work through your lunch break?

18 November 2019

Can a part-time employee opt to work a six-hour shift without a break?

Our Workplace Advice Line recently received this question from a Workplace Assured subscriber.

Q One of our employees would like to change his work hours to accommodate picking up children from school. He currently works part-time from 8.30am to 3pm with a half-hour unpaid meal break.
 
He'd like to work through his lunch break so that he can finish at 2.30pm. Is this allowed? He is covered under the Clerks – Private Sector Award 2010.
 
Are there any restrictions with respect to working a certain number of hours without a meal break?
 
A The conditions related to the taking of an unpaid meal break would be determined by the modern award. Clause 26, Breaks, provides that a meal period must be taken not later than five hours after commencing work.
 
Employees required to work through meal breaks must be paid double time until a meal break is taken. This term seems unequivocal – an employee must be paid at double time penalty rate if required to work more than five hours without a meal break.

The award, however, also provides for flexibility regarding certain terms in the award. The terms include “arrangements for when work is performed”. Meal breaks would appear to fall into this category. The clause allows an employer and an individual employee to agree to vary the application of the award, provided:
  • the agreement is in writing and identifies the parties to the agreement
  • state each term of the award that the employer and employee have agreed to vary
  • detail how the application of each term has been varied by agreement
  • detail how the agreement results in the employee being better off overall in relation to the employee’s terms and conditions of employment, and
  • the date the agreement commences to operate.
If the employee is being paid above the award rate, the employer and the employee may agree the penalty rate (double time) for the extra hour be absorbed into the over award payment. The terms of the employee’s contract may specifically express this.
 
It should be noted, however, that the employer could not unilaterally vary the employee’s contract of employment to absorb the penalty rate unless an existing term allowed for such an arrangement.

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