Work breaks and hours of work. What is allowed?
When it comes to working hours, breaks and rostering in general, there’s no one-size-fits-all approach and the hours and rules change from state to state – and country to country. And the reason for this is that with so many different industries, requiring so many different things from staff, it can be hard to level a playing field between, for example, a hairdressing and hospitality role. As a result, many industries are governed by different awards, and enterprise and registered agreements, which cover everything from the times of day ordinary hours can be worked to the amount of leave available. That said, there are some standards conditions, which form part of the National Employment Standards (NES) set out in the federal Fair Work Act 2009. According to the Fair Work Ombudsman, these apply to “all employees covered by the national workplace relations scheme, regardless of the applicable industrial implement or contract of employment”.
One of the most important conditions set out by the NES is working hours. It says employers can’t expect a full-time employee to work more than 38 hours a week, unless the extra hours asked are reasonable. For an employee other than full-time, it’s the lesser of 38 hours, or their ordinary hours of work in a week, again, unless the additional hours asked are reasonable. These hours for both classifications must include any authorised hours of leave or absence, either paid or unpaid.
So how to tell if hours are reasonable?
There’s a number of questions that must be asked to determine if extra hours are reasonable. These include:
- Is there an risk to the employee’s health and safety?
- Do they impact on their personal circumstances, including any family responsibilities?
- Are they necessary for the workplace or enterprise?
- Is the worker entitled to some form of compensation or remuneration, for example overtime or penalty rates for the extra hours?
- How much notice has been provided of the additional hours, and/or the refusal to work them?
- The industry’s standard work patterns.
- The employees’ role and level of responsibility.
- Whether the hours are in accordance with averaging provisions (averaging arrangements allow for shifts of different length within a specified period greater than a week – but maximum 26 weeks – so long as they average out to the allowable average weekly hours set out under NES)
Breaks and breakes between shifts
There are two kinds of paid and unpaid standard break available to workers. A rest break is a short breather while a meal break is designed to allow them to eat a meal. Again, looking at the variety of industry needs, the conditions for both are often set out in awards and agreements. These include break lengths, when they must be taken and how/if they are paid. Industries also vary in whether they have a requirement for a minimum amount of time to go by between the end of one shift and the start of another.
Workers covered by the Horticulture Award 2010
have two types of break. A rest break is a 10-minute paid break that counts as time worked while a meal break is a 30-60 minute unpaid break that doesn’t count as time worked. An employee gets one rest break and one meal break each day and can agree with their employee to take an extra unpaid rest break each day. An employee who works for five hours or more must get at least one meal break. The rest break must be taken each morning. The meal break must be taken no later than five hours after starting work or at an agreed time. When an employee is told to work during their meal break they must be paid double time for the time worked until they get one. Employees must get a minimum break of 10 hours between finishing work one day and starting work the next day. The finishing time must incorporate reasonable additional hours or overtime. When this break isn’t honoured and they start at their normal shift time the next day, they get paid overtime for the hours they work, until they are released from duty to have a 10-hour break between shifts.
More specific industry information is available at https://www.fairwork.gov.au/Employee-entitlements/hours-of-work-breaks-and-rosters/breaks
Do you have any questions or great tips to share?