Meal break held to be compulsory

Cases

Meal break held to be compulsory

A Full Court of the South Australian Industrial Court has found that the meal break provision in the SA Public Sector Salaried Employees Interim Award was compulsory - requiring employees to take a meal break after five hours work.

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10/03

 

A Full Court of the South Australian Industrial Court has found that the meal break provision in the SA Public Sector Salaried Employees Interim Award was compulsory - requiring employees to take a meal break after five hours work.

The Full Court based its decision on health concerns for employees working longer than five hours without a break.

Relevant wording

The relevant wording of the clause was:

'...An officer will be entitled to a break for the midday meal without pay after five hours have elapsed from the recognised starting time, otherwise overtime at the rate of time and a half will be paid until the meal break occurs.

'Overtime will not be payable if the work is continued because of a request by or on behalf of the employee.’

PSA position

On the Public Service Association's argument it meant:

‘An officer must be provided with and must take a midday meal break every day and if the break is not provided within hours of starting time the officer is to be paid time and a half until the break is provided, unless the reason why the provision of the break has been delayed is because the officer or someone acting on the officer’s behalf asked for it to be delayed.'

It meant:

'An officer has the right to be provided with a midday meal break but is not obliged to take it. If an officer has not waived the right to a meal break and if on a particular day if the break is not provided within five hours of starting time the officer is to be paid time and a half until the break is provided, unless the reason why the provision of the break has been delayed is because the officer or someone acting on the officer’s behalf asked for it to be delayed.’

Reasoning 

The Full Court accepted the PSA argument and stated:

‘The need to provide workers with adequate rest breaks to control health and safety risks and to relieve fatigue was recognised as long ago as 1885...

'A survey of awards across Australia will doubtless reveal that similar provisions have existed in many awards for many years and that they have also applied to men. We expect that by and large this would have been achieved through negotiation and consensus but it is notable that in 1959 the Commonwealth Conciliation and Arbitration Commission in re 'Tramway Employees (Melbourne) Interim Award' (1959 92 CAR 378 at 387) accepted medical evidence that a person should not be expected to work for more than four and a half hours without having a meal break and that it drafted the relevant award accordingly.

'It is safe to assume that in 1976 when the relevant clause was first introduced the then prevailing industrial practice as provided for by the awards then in existence, was that the taking of a midday meal break was regarded as compulsory. Consistent with the approach adopted by Justice Madgwick, this would strongly suggest that that was what was intended here.

...

'The provision of a daily unpaid meal break is obligatory. It is to be taken after five hours have elapsed from the recognised starting time. The sanction of overtime is intended to operate if the meal break is not taken at that time and is payable until the meal break occurs unless the proviso applies. The operation of the proviso is directed to the individual request of an employee responding to his or her work responsibilities on a given day.

'If, on a given day, an employee requests either personally or by a representative, that his or her work continue after five hours have elapsed from the recognised start time, that is that the meal break be delayed, the employer will not be obliged to pay overtime until the meal break occurs. In accordance with Pt 9 of the award, as currently framed, the hours of work for day workers or shift workers on day duty cannot exclude a daily unpaid meal break.'

The appeal was dismissed.

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