Can a part-time employee work without a break?

Q&A

Can a part-time employee work without a break?

Working part-time hours without a break is dependent on award conditions and negotiations with an employer.

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Working part-time hours without a break is dependent on award conditions and negotiations with an employer.
 
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Q An employee has approached management regarding a flexible working arrangement. The employee works part-time (six hours each day, 8.30am-3.00pm, Monday to Friday inclusive), with a half hour unpaid meal break.
 
The employee has requested that her hours of work be altered so that she finishes work at 2.30pm. The change is so that she can pick her children up from primary school.
 
During the discussions, the employee indicated she would be quite amenable to working six hours straight (8.30am-2.30pm) and waiving her unpaid meal break. This way, she maintains her weekly rate of pay.
 
The company has no problem with accepting this change, however, her immediate manager has questioned whether the employee is allowed to work six hours without a break for a meal. The employee is covered under the Clerks — Private Sector Award 2010.
 
Are there any restrictions with respect to working a certain number of hours without a meal break?
 
A The conditions related to the taking of an unpaid meal break would be determined by the modern award. Clause 26 Breaks provides that the meal period must be taken not later than five hours after commencing work.
 
Employees required to work through meal breaks must be paid double time until a meal break is taken. This term seems unequivocal — an employee must be paid at double time penalty rate if required to work more than five hours without a meal break.

The award, however, also provides for flexibility regarding certain terms in the award. The terms include “arrangements for when work is performed”. Meal breaks would appear to fall into this category. The clause allows an employer and an individual employee to agree to vary the application of the award, provided:
  • The agreement is in writing and identifies the parties to the agreement;
  • State each term of the award that the employer and employee have agreed to vary;
  • Detail how the application of each term has been varied by agreement;
  • Detail how the agreement results in the employee being better off overall in relation to the employee’s terms and conditions of employment, and
  • The date the agreement commences to operate.
If the employee is being paid above the award rate, the employer and the employee may agree the penalty rate (double time) for the extra hour be absorbed into the over award payment. The terms of the employee’s contract may specifically express this.
 
It should be noted, however, that the employer could not unilaterally vary the employee’s contract of employment to absorb the penalty rate unless an existing term allowed for such an arrangement.
 

 
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