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​Can you insist employees stay at the workplace during lunch breaks?

Can you control what workers do on lunch breaks?
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​Can you insist employees stay at the workplace during lunch breaks?

​Can you insist employees stay at the workplace during lunch breaks?

11 May 2021

Can you control what workers do on lunch breaks?

Q Our company is considering introducing a policy that prevents employees from leaving the workplace during their lunch break, or during their morning or afternoon tea break.

There is a subsidised staff cafe located on the premises while the nearest shops are some kilometres away. The incidence of employees being late back from their lunch break, and other breaks, has increased dramatically over the past 12 months.

It is the company’s view that an employer has some direction over the activities of an employee during their work breaks. Would such a policy be valid?

A There is a general principle that an employee cannot engage in activities during an unpaid break which may render them incapable of performing work on their return from a break (such as drinking alcohol). However, the matter of employer control of an employee’s activities will usually depend on whether the break is paid or unpaid. Lunch breaks under most modern awards are usually unpaid.

An employer would not necessarily have control over an employee’ activities during any unpaid break however it may exercise some control during any paid break, such as a crib break for continuous shift workers or a morning or afternoon rest break, under certain circumstances.

It is the responsibility of an employee to be ready for work at the conclusion of an unpaid lunch break or paid rest break otherwise an employer may dock wages for any unexplained lateness when returning from a lunch break.

Is lunch break unpaid?

Award/agreement free employees

The Fair Work Act (s62(4)) does not consider that a lunch break is part of an employee’s ordinary hours of work, which 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."

The Federal Circuit Court determined that the Act does not compel an employer to treat a lunch break as part of the hours that the applicants worked in a week which would require the lunch break to be treated as 'leave' or 'absence', whether paid or unpaid, 'that are authorised' by the employer, or as a term or condition of the employment, or under a law or instrument in force.

Award-covered employees

Most modern awards provide for an unpaid lunch break to be taken within a specific time after commencing ordinary hours. For example, the Clerks – Private Sector Award 2010 (cl 26.1) provides that a meal period of not less than 30 minutes and not more than 60 minutes must be allowed, and must be taken no later than five hours after commencing work. Work performed during the lunch period is paid at double time until an employee is allowed to take a meal break.

Paid rest breaks

Awards may prescribe paid rest breaks. These usually include a crib break (in the case of continuous shift workers) or a paid rest break for morning or afternoon tea. Generally, an employee should not be directed to work during a paid crib break, or a paid morning or afternoon rest break, although an employer could direct an employee on a paid break to remain within the work area and perform work in the case of an emergency. The principle being the employer is paying the employee so there is some control over the employee’s activities, but only in unusual circumstances.

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 the Fair Work Act 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
  • highly repetitive and/or monotonous work.

The scheduling of rest breaks would depend on an 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 an employee is showing signs of fatigue and reduced performance.

The bottom line: Generally, an employer cannot control the activities of an employee when they are on an unpaid break, such as a lunch break, but it may be permissible to direct an employee to work during a paid break, under certain circumstances.

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