Questions about breaks usually fall into three categories: whether the break is part of someone’s ordinary hours of work, is it paid or unpaid, and how long is the break for.
 

What are the rules?

There is no provision for rest breaks in the National Employment Standards (NES), however employees covered by a modern award or enterprise agreement are usually entitled to designated rest periods. There may also be a provision in an employee’s contract of employment that provides for a meal or rest break.

It is common 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 an award or agreement, reference to a meal break is implied to mean an unpaid break and is not counted as time worked in the computation of overtime.

Many awards and agreements 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 their 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.

However, a modern award may provide that if an employee is directed to work during their meal break to attend to a breakdown of machinery or perform routine maintenance of plant, payment is usually at the employee’s ordinary rate of pay. A common provision allows an employer to stagger the time of taking meal and rest breaks to meet operational requirements. 
 

Non award/agreement employees

There is no requirement to provide a meal break for an award/agreement free employee. Provision for a meal break may be a term of a contract of employment, although there is no statutory obligation to include such a term.

An employer, however, needs to consider the workplace health and safety consequences of employees working long hours without a break.
 

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, employers must provide a healthy and safe workplace. This means ensuring workers have adequate rest breaks to relieve fatigue and control risks.

Rest breaks are particularly important for:

  • heavy manual work

  • tasks needing concentration and attention to detail, and

  • highly repetitive and/or monotonous work.

The scheduling of rest breaks depends 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.
 

Holiday and Sunday work

Many awards and agreements contain no provision for a meal break during work performed on a Sunday or public holiday. As work on these days is not normally regarded as in the same category as overtime work, concessions such as paid crib breaks do not apply ordinarily in the case of such work.
 

Work during a meal break

An award or agreement may provide that an employee is to be paid at the appropriate overtime penalty rate if required to work during their recognised meal break. In some cases, a penalty rate will continue to apply until such time as the employee is allowed a break.


Morning/afternoon tea break

Some modern awards and agreements may refer to a paid morning and/or afternoon tea break to be taken at a time fixed by an employer.

A paid morning or afternoon tea break is not a ‘standard’ provision in a modern award. You will need to refer to the applicable industrial instrument to determine an employee’s entitlement to a morning and/or afternoon tea break.


Crib breaks – continuous shift work

A crib break is a paid meal break. Some awards and agreements include crib breaks for times when an employee might need to resume work during their meal break and will need to stay at work – that is, they can't leave their work area or the workplace.

Employees on continuous shift work are normally entitled to a crib break (usually 20 minutes) during each shift. Such breaks are usually counted as time worked and form part of the hours of the rostered shift.
 

Is a lunch break included in ordinary hours?

The Fair Work Act (s62(4)) does not consider a lunch break to be part of an employee’s ordinary hours of work.
 

The bottom line

A meal or lunch break is not a statutory provision under the Fair Work Act, however an entitlement may apply under the terms of the applicable modern award or enterprise agreement. In the case of award/agreement free employees, an employer is also obliged to comply with the relevant workplace health and safety law.