Q. We have an employee employed in our warehouse currently on light duties and who works four hours a day as part of their return-to-work program. He usually takes a 10-minute paid morning tea break but as he is only working four hours the company feels this is unnecessary and would prefer the tea break be waived for the time being. Is providing a morning tea break a legal requirement or is this an employment condition which the company can withdraw under the circumstances?  

A. Whether an employee is entitled to a paid morning or afternoon tea break will depend on the terms of the applicable modern award, enterprise agreement or the employee’s contract of employment. The Fair Work Act does not provide a statutory entitlement to any work breaks, including a lunch break.  

 

Morning/afternoon rest break  

Provision of a paid morning or afternoon tea break is a term of some modern awards. For example, clause 14.2 of the Storage Services & Wholesale Award 2010 (which covers warehouse employees) provides that “All employees are entitled to a paid rest break of 10 minutes each morning and afternoon. These breaks are to be counted as time worked and taken at a time fixed by the employer, provided that the rest break will not be: (a) within one hour of normal commencement or cessation of work; or (b) within one hour either side of a meal break.” Similar terms also appear in the General Retail Industry Award 2010, Hospitality Industry (General) Award 2010 and Building and Construction General On-Site Award 2010.   

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 10-minute paid rest break.  

  
The applicable modern award may also determine an employee’s entitlement to an unpaid meal break during ordinary hours, breaks when an employee works overtime or when work is performed on a weekend or a public holiday.  

  

Meal/crib break  

  The majority of modern awards contain terms which permit a day worker to take an unpaid meal break during each day or each shift. In some cases, the period of the meal break is not specified but is commonly between 30 minutes and one hour. Because a meal break is unpaid it is not counted as part of an employee’s ordinary hours of work, so 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.   

In the case of continuous shift workers, the entitlement is usually a 20-minute, paid crib break. Unless otherwise specified by the applicable modern award, a reference to a ‘meal break’ generally means an unpaid break; whereas, reference to a ‘crib break’ generally means a paid break. 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, such as a machine breakdown or 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 but can vary depending on the terms of the applicable award.   


What about managers?  

The Fair Work Act does not provide for a meal break in the case of an award/agreement free employee. Provision of rest breaks may be included as a term of an employee’s contract of employment.  

 

Workplace health and safety considerations  

While there is no statutory requirement to provide a rest break for an award/agreement free employee the employer must comply with the relevant state or territory workplace health and safety law. Generally, such laws require the employer to 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 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.   

 

Bottom line  

Rest periods are usually subject to the terms of the applicable modern award or enterprise agreement, while the employer should provide suitable rest periods to award/agreement free employees to comply with the relevant workplace health and safety law.