Employees will generally make the most of their meal break entitlements, heading outside for a walk, taking time out to read, or simply relaxing in the break room. But what happens when they are required to work through a break, and does it have implications for an employee’s pay?

 

Is working through a meal break overtime?

An employee’s entitlement to a meal break is subject to the relevant provisions of the applicable modern award, enterprise agreement or the individual’s contract of employment.

Provision for taking a meal break during each day or shift is made under most modern awards. In a number of cases the duration of such breaks is not specified, but it is a common provision 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 the applicable modern award, a reference to a meal break is implied to mean an unpaid break and is not considered part of an employee’s ordinary hours of work.

Many modern awards 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 rates (as it is considered time worked outside the employee’s span of ordinary hours). This missed meal break penalty will continue 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, 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. 

Award/agreement-free employees

A break for a meal is not a condition provided under the National Employment Standards. There is no requirement to provide a meal break for an award/agreement-free employee.

Provision for a meal break may be made in an individual contract of employment, although there is no legal obligation on the employer to do so. 

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 WHS 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 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.

Rest periods should be taken when employees are showing signs of fatigue and reduced performance.

The bottom line: Unpaid meal breaks fall outside the span of ordinary hours so any work performed during the break is payable at the appropriate overtime rate. Reference should be made to the applicable modern award or enterprise agreements to determine an employee’s entitlement when working during their meal break.