Media reports recently have highlighted survey results that appear to indicate almost a quarter of Australian employees are apparently not taking their award entitlement to unpaid meal breaks.
Workwise Advisory Services has received inquiries over time regarding the taking of meal breaks – when they should be taken and how do they fit with certain rosters and hours of work, and on occasion we are asked about employees who eat lunch at the desk.
Some employees choose not to take their break and work right through, taking a break when they can and there are others who manage to eat lunch at the desk while still working (for example to maintain services at reception).
It’s our opinion that neither of these situations are ideal and here’s why:
Breaches of Federal Awards, including not allowing an employee their unpaid 30-minute meal break may attract civil penalties of up to $51,000.00 per occasion.
Quite aside from civil penalties, some awards go so far as to provide for higher rates of pay to be paid to an employee should their meal break not be allowed for within a certain number of hours being worked.
Employers who require employees to work through their meal break need to be very aware of their award conditions or conditions of the instrument under which they employ staff (Enterprise Bargain Agreement for example).
Some employees have also been known to ask for back-payment for untaken meal breaks at a time when the relationship with their employer has hit shaky ground.
Not all Awards are equal – they differ in a number of ways. Some are very proscriptive in relation to meal breaks and it is our recommendation that you thoroughly investigate your requirement as an employer to provide employees with their rightful meal break according to the provisions of the applicable Award.
For example, this from the Building and Construction General On-Site Award 2010:
35.1 Meal break—day workers
(a) There must be a cessation of work and of working time, for the purpose of a meal on each day, of no less than 30 minutes, to be taken between noon and 1.00 pm, or as otherwise agreed between an employer and a majority of employees, provided that an employee must not be required to work more than five hours without a break for a meal.
Or this, from the Clerks-Private Sector Award 2010:
…..a meal period of not less than 30 minutes and not more than 60 minutes must be allowed to each employee. Such meal period must be taken not later than five hours after commencing work and after the resumption of work from a previous meal break. Employees required to work through meal breaks must be paid double time for all time so worked until a meal break is allowed.
If it has become ‘custom and practice’ at your workplace for employees to work through their lunch break, employers might like to consider drawing a line in the sand and instigating company policy on meal breaks to ensure the company is not opening itself up to potential breaches of their employment instrument.
Workwise Members who have a query regarding the topic of meal breaks are encouraged to contact the Workwise office on (08) 9792 4451 (Mon-Fri).
The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise Advisory Services recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise Advisory Services.