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Does a short lunch break breach WHS laws?

This question was recently sent to our Workplace Advice Line.
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Does a short lunch break breach WHS laws?

Does a short lunch break breach WHS laws?

5 October 2020

Does a short lunch break pose any work health and safety issues?

This question was recently sent to our Workplace Advice Line.

Q An employee has approached management requesting a change of hours. She has proposed an arrangement whereby her ordinary hours would be 8am-4pm Monday to Friday, with a short lunch break of 24 minutes each day. Her position is not covered under any modern award or enterprise agreement.

The company is happy to agree to her request however would a 24-minute lunch break breach any legal obligations under the Fair Work Act? And would it pose any work health and safety issues?

A A break for a meal is not a condition provided under the National Employment Standards and consequently there is no statutory minimum period for a lunch break.

In this case, the employee’s entitlement to a lunch break is subject to the terms of the contract of employment. However, the employer would need to monitor the employee for any signs of fatigue under the duty of care required by the relevant workplace health and safety legislation.

Otherwise, such an arrangement would not be in breach of the Fair Work Act as there is no statutory minimum lunch break for an award/agreement-free employee. A lunch break is considered to form part of an employee’s ordinary hours and consequently is considered an unpaid break.


Award/agreement-free employees

There is no requirement to provide a meal break for an award/agreement-free employee. Provision for a meal break may be made in an individual contract of employment, although there is no legal obligation on an employer to do so.

An employer should check whether an employee who is not specifically covered by a modern award is affected by the scope of the Miscellaneous Modern Award 2010.


Workplace health and safety considerations

In the case of award/agreement-free employees, regulation of meal or rest breaks is not covered specifically by either workplace relations legislation or workplace health and safety legislation.

However, under workplace health and safety law, an employer must provide a healthy and safe workplace. This means ensuring that workers have adequate rest breaks to control risks and to relieve fatigue.

Rest breaks are particularly important for:
  • heavy manual work
  • tasks needing concentration and attention to detail, and
  • highly repetitive and/or monotonous work.

Scheduling of rest breaks depends on the individual employee (age, health, gender, physical capacity, whether they are experienced in the job, or returning from a long break), the nature of the task, and the physical work environment.

Ultimately, rest periods should be taken when employees are showing signs of fatigue and reduced performance.


Fair Work Act

As mentioned previously, the Fair Work Act (s62(4)) does not consider that a lunch break is part of an employee’s ordinary hours of work.

Section 62(4) provides:

"Authorised leave or absence treated as hours worked

(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee's employer, or
(b) by or under a term or condition of the employee's employment, or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law."


Modern awards

Most modern awards contain terms which require an employee to have a lunch break, as well as other breaks during an employee’s ordinary hours. In a number of cases the duration of such breaks is not specified, but it is a common provision for a meal break for day workers to be at least 30 minutes and up to one hour or, in the case of shift work or overtime, 20 minutes paid crib break.

Unless otherwise provided by the award, a reference to a meal break is implied to mean an unpaid break and is not counted as time worked in the computation of overtime.

A modern award may also prescribe a limitation on the number of hours an employee may work without taking a break for a meal, five hours usually being the maximum period (sometimes six hours by agreement). An employee required to work during a meal break is usually entitled to be paid at the appropriate overtime penalty rate, with the penalty rate continuing to apply to time worked until the employee has a break for a meal.


Work during a meal break

A modern award may provide that an employee is to be paid at the appropriate overtime penalty rate if required to work during his/her recognised meal break. In some cases, it is also provided that the penalty rate shall continue to apply until such time as the employee is allowed a break.

The bottom line: There is no statutory minimum period for a lunch break for an award/agreement-free employee. However, an employer needs to comply with the relevant workplace health and safety legislation to ensure an employee does not become fatigued while working.
 

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