Q. We have a casual employee who does face-to-face fundraising work and falls under the Miscellaneous Award 2020. We have noticed that in other awards, there is a penalty rate. There is no guidance if an employee works through meal breaks. 
What should we do if an employee wants to work through their meal break? Can we schedule a six-hour shift with no breaks? 

A. The Miscellaneous Award clause 14 Breaks states, "an employee must not be required to work for more than five hours without an unpaid meal break of at least 30 minutes".

It is not advisable to breach the award clause regarding the frequency of break times. This would present workplace health and safety issues for employees working more than five hours without a meal break.

 

Workplace health and safety 

In the case of award/agreement-free employees, regulation of meal or rest breaks is not explicitly covered 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 relieve fatigue.

Rest breaks are essential for:

  • heavy manual work
  • tasks needing concentration and attention to detail, and
  • highly repetitive and monotonous work.

Scheduling 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 show signs of fatigue and reduced performance.

 

Work during a meal break

A modern award may provide that an employee is paid at the appropriate overtime penalty rate if required to work during their recognised meal break. In some cases, the penalty rate shall continue to apply until the employee is allowed a break.

There is no statutory minimum period for a lunch break for an award/agreement-free employee. However, employers must comply with relevant workplace health and safety legislation to ensure that employees do not become fatigued while working.