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Late lunch break: do penalty rates apply?

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Late lunch break: do penalty rates apply?

Late lunch break: do penalty rates apply?

29 October 2020

Are workers entitled to penalty rates if they take a lunch break more than five hours after their start time?

This question was recently sent to our Workplace Advice Line.

Q A full-time employee who is due to start soon wants to take his lunch break from 3-3.30pm so he can pick up his children from school.

Under the Legal Services Award (LSA), meal breaks must be taken not later than five hours after commencing work. Given he will be starting at 9am, the start time for a lunch break would be 2pm at the latest.

As this arrangement is at the employee's request, are we required to pay the one hour worked between 2pm and 3pm at the rate of 150% of the minimum hourly rate award rate? Also, does the award allow for an extension of the time worked before a break (from five to six hours) by written agreement?

We are also considering other options, by agreement, such as change of start/finish times with either a 30-minute or 60-minute lunch break to facilitate the employee’s request.

A Under the Legal Services Award the penalty for working more than five hours would be that when working through their rostered meal break the employee is paid at 150% of their ordinary rate, then they revert to their ordinary rate for the rest of their day including when taking their delayed break (3 -3:30pm).

This is according to clause 14.1

14.1 Unpaid meal breaks

(a) A meal break of between 30 and 60 minutes must be taken not later than 5 hours after the employee starts work or after resuming work after a previous meal break.

(b) An employee directed by an employer to work in excess of 5 hours without a meal break must be:

(i) paid at the rate of 150% of the minimum hourly rate for the meal break;and

(ii) be permitted to have their usual meal break without deduction from their wage as soon as possible after the prescribed meal break.

(c) Clause 14.1 will not operate outside an employee’s ordinary working hours. Meal breaks during overtime are prescribed in clause 20—Overtime.

The award doesn’t specifically allow for agreement to delay the start of the meal break beyond five hours. However, the employer can arrange to change the start and finish times of the shifts to work within the rules of the award and accommodate the employee's late break.

Alternatively if the employee wants to submit a written request for an Individual Flexibility Agreement (IFA) under clause 5 of the award, then the employer can consider whether they can make an IFA, in accordance with that clause, to agree on a delayed meal break without incurring the penalties described so long as the employee considers themselves better off.

You'll find more information on making IFAs here.

It would also be worth seeking legal advice on whether their IFA is compliant.

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