Break Compliance: Frequently Asked Questions

Recently, Tanda hosted an episode of our Paysure webinar series discussing break compliance. The webinar explained important compliance trends in the breaks space, and we recommend watching it here if you want to understand the basics of staying compliant.

During the webinar, attendees asked a wide range of questions about break compliance. We’ve catalogued those answers in a simple FAQ for you to read below.

Q: What happens when staff opt not to take a break?

A: This is tricky. Most Awards say that an employee who works more than five hours is entitled to an unpaid meal break of 30-60 minutes. They also state that an employee who works for 6 hours or less can not take breaks. If staff are adamant about not having a break, it’s hard to argue that an employer can force them to stop working. It’s a two-way street.

The best solution here is to clearly show breaks on your roster and to make it absolutely clear to employees that they are entitled to a break. The danger of having employees opt-out of breaks is that later on, they could say that they simply weren’t given their breaks and push for compensation. If you can show the employee was entitled to a break and knew that, you’re protecting yourself.

Q: Our shifts are short enough not to need breaks. But employees sometimes clock off late, making their shift run long enough to be entitled to a break. Are they entitled to a break?

A: The break compliance rules create traps like these. By the time the employee goes over the five-hour mark, it’s actually too late for them to take the break regardless! The break can’t be taken in the last hour of work. One way around this is to roster an unpaid break for anyone with a schedule longer than 4 hours and 45 minutes. That way, you’re covered if employees do clock out late.

Q: Our managers are salaried and occasionally don’t take breaks because of business demand – when things suddenly get hectic, it’s just not possible. Is this a risk?

A: There are a few things you can do here to manage this issue. The first is to always make sure breaks are on the roster. This reduces the risk of managers saying they weren’t aware of their break entitlements.

However, in terms of breaks themselves, managers are still entitled to a break. If they don’t want to take a break, they don’t have to, but again, you need to show that they were aware that they were entitled to a rest.

The second option here is to consider using the higher income threshold. Basically, this rule means that if you pay an employee a high enough salary, they receive that money instead of typical Award entitlements, removing the need for them to have a break entirely. There are some nuanced rules about using the high-income guarantee, which you should check before you use it. The threshold currently sits at $158,500.

Q: Can our employees change their break time to fit in with an offsite appointment, for example, a doctor’s appointment?

A: The answer to this question depends which Award your employee is on. Some Awards do not allow employees to vary their break time, and some do.

But, often Awards will only require the employee to be paid the missed meal break penalty only if they had to work through their meal break. Its been argued that if the employee wants to work through their meal break so that they can leave early, they haven’t been required to work through it, so no penalty applies.

This is a great illustration of the needless complexity of some awards.

Q: Can an employees rest break be merged with an employees unpaid meal break?

A: The answer to this is probably not. Most Awards state that when an employer rosters an employee’s breaks, they must make all reasonable efforts to ensure that breaks are spread evenly across the employee’s shift. So, you need to roster them evenly unless it isn’t reasonably possible.

However, if you’re on an Enterprise Bargaining Agreement, you could agree to different rules with the relevant union.

Q: All of our staff take their paid break, but it’s not on the roster. Are these breaks compliant?

A: There is no legal requirement that expressly requires the break to be on the roster, but it’s a good practice to get into. Ideally, the roster should show actual break times, but at the very least it should show the breaks that the employee had that shift (like 1 unpaid 10 minute break).

If breaks are listed on the roster, employees can’t suddenly turn around and claim they didn’t get break entitlements.

Q: If a break is longer than 90-minutes, does this automatically switch the shift to a split shift?

A: Tanda’s view is that unpaid breaks longer than 60 minutes either split the shift (if the Award allows for split/broken shifts), or starts a new shift (for Awards that don’t have split or broken shifts).

Q: Is it possible for the employee to take their breaks as smaller breaks throughout the day – like splitting 2x 10-minute breaks into 4x 5-minute breaks?

A: Probably not, but check your Award. A common phrase in many Awards is that “In rostering rest and meal breaks, the employer must seek to ensure that the employee has meaningful breaks during work hours.” Meaningful breaks essentially means that the breaks aren’t drip-fed out as a few minutes here and there. It’s best practice to have the breaks as the full amount, on schedule.

Q: What happens if an employee clocks back in early from their breaks?

A: Clocked times are just the best proxy for worked time. The real question you have to ask is whether the employee had the full break time. If the employee had the full amount, and just clocked the break start later than they should or clocked back in from the break too early, then adjusting the break length to the full amount accordingly is fine.

On the other hand, if the employee had a break that was shorted than the allotted time:

• if you adjust the break time to the full amount then you might be underpaying the employee a missed meal break penalty; and
• you might mask that employees aren’t getting the breaks they are entitled to.

The approach that a business takes here will depend on risk appetite, but we’d recommend being cautious, and taking this course of action:

a) leave the break time as it is and pay whatever penalty that might apply as a result; and

b) treat the early clock in as an HR issue. If you expect employees to only clock back in once they have had their full break entitlement, then make this clear.

Q: Our employees are rostered for more than the allotted time needed to take a break, but if you include the break time, they work less than the allotted time needed to take a break. For example, they’re rostered to work for 5 hours and 15 minutes, but with a 30-minute break, they end up working for 4 hours and 45 minutes. What is the correct solution?

A: Our interpretation is that if you work 5 hours you need to have taken a 30 minute unpaid break. The problem is what to do if the employee is rostered for 5 hours to 5.4999 hours, so that they don’t end up working 5 hours once they take the unpaid break.

In that case, I would include the unpaid break. We asked the FWC to consider this point recently: https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2022fwc1444.pdf

See [29] in particular. We are content that this means that having the unpaid break even though the employee doesn’t actually end up working 5 hours is fine.

Q: Do I have to pay an employee penalty rates for the remainder of the shift if they miss their break?

A: This depends on the Award. You should check the conditions in the specific Award.

Disclaimer – Break Compliance

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