Work during meal breaks – is it overtime?

Work during meal breaks – is it overtime?

By Paul Munro on 11 October 2018
Are we required to pay an employee overtime rates if he works through his lunch break?

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Q We have an administrative employee who did not take his usual lunch break last week due to an extra work-load. Our payroll department has asked what payment is to be made to the employee.

What arrangements can the company and employee agree upon in relation to this circumstance and is work performed during a meal break considered overtime? The employee is covered by the Clerks – Private Sector Award.
A In the absence of any other arrangement, the Clerks – Private Sector Award (cl. 26.1) provides that an employee required to work during their meal break must be paid double time for all time worked until a meal break is taken. This means that if the employee did not take a meal break at all during the day, the employee is paid double time until ceasing work on that day.

Other arrangements

The Clerks – Private Sector Award (cl.7) allows an employer and an individual employee to agree to vary the application of certain terms of the award. This includes terms relating to arrangements for when work is performed and overtime rates.

Clause 27.5 of the award provides that an employee may elect, with the consent of the employer, to take time off instead of payment of overtime at a time agreed by the employer. Overtime taken as time off in lieu must be taken at the ordinary rate that is an hour for each hour worked. This arrangement must occur within four weeks otherwise the overtime rate must be paid to the employee.

Other awards

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 rate (as it is considered time worked outside the employee’s span of ordinary hours), 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. 

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 & 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.

Morning and/or afternoon tea break 

While not a ‘standard’ provision in modern awards, some modern awards refer to a 10-minute paid morning and/or afternoon tea break to be taken at a time fixed by an employer. For example, Clause 26.2 of 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 that the employee is required to work not less than eight hours.

The bottom line: An unpaid meal break falls 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 agreement to determine an employee’s entitlement when working during their meal break.

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