As an employer, you may at times be approached by an employee, or a group of employees, seeking to alter their hours of work by forgoing or taking a shortened meal break. For example, an employee may request to work through their lunch break in return for leaving work 30 minutes earlier than their usual finish time.
While you may be happy to approve such a request, it is important that consideration be given to whether doing so would breach any legal obligations that you may have under the Fair Work Act 2009 or an applicable award or agreement.
Award Covered Employees
Most modern awards contain terms which require an employee to have a lunch break (and potentially additional rest breaks) during their ordinary hours of work. While in some instances, the actual duration of such breaks is not specified, it is a common provision that a meal break of at least 30 minutes be taken.
An applicable modern award may also specifically limit the number of hours that an employee may work without taking a break for a meal, with five hours (sometimes 6 hours by agreement) commonly being the maximum period that can be worked break-free.
Where such provisions exist, there may be further entitlements which will apply should a meal break not be provided or taken. For example, where an employee is required to work through a meal break, there may be an entitlement for the employee to be paid at penalty rates until such time that they have taken the required break.
Award or Agreement Free Employees
Meal breaks themselves are not provided for under the National Employment Standards (NES) and as such, there is no statutory minimum period for a lunch break to be provided or taken. Given this, agreeing to such an arrangement would not be in breach of the Fair Work Act 2009.
In the case for award or agreement free employees, the entitlement to, and requirement to take, a meal break would be subject to the terms of the contract of their employment, allowing for agreement to be reached on how and when such breaks are taken.
However, despite this, there does continue to be an obligation to ensure the health and safety of all employees. Should an employee be allowed to forgo their meal break on any occasion, you would need to continue to monitor the employee for any signs of fatigue to ensure that you are continuing to meet your obligations and duty of care required by the relevant workplace health and safety legislation.
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