Are you allocating the right breaks?

Key Points
  • Employees have a workplace right to use the toilet and drink water while at work and take paid tea/rest breaks.
  • Employers need to ensure correct payment for breaks in accordance with relevant modern awards and enterprise agreements.
  • Failure to provide such breaks could result in employers breaching relevant workplace health and safety laws which could give rise to General Protections claims and fines.
When it comes to workers’ rights and paid rest breaks, the Federal Court recently ruled[1] that workers have a “workplace right” to toilet breaks and to drink water while in the workplace.  Why is this important for employers and HR professionals?
Paid Rest Breaks
Many modern awards and enterprise agreements contain provisions for employees to be paid for ten-minute tea/rest breaks when working shifts over a certain number of hours (Paid Rest Break).
For example, the General Retail Industry Award 2010 (Cth), the Fast Food Industry Award 2010 (Cth) and the Social, Community, Home Care and Disability Services Industry Award 2010 (Cth) all provide employees with a Paid Rest Break for every four hours worked.  Failure by an employer to pay a Paid Rest Break represents a contravention of section 45 of the Fair Work Act 2009 (Cth) (FW Act).  If a contravention is established and pursued by the Fair Work Ombudsman, maximum penalties imposed for each breach are currently up to $63,000 per breach for the employer and $12,600 per breach for each individual officer directly and knowingly involved in the breaches.
Access to toilet and drinking facilities
The Federal Court determined that employers have a work, health and safety obligation to allow workers access to toilet and drinking facilities.  More importantly, access to such facilities cannot be restricted to the specified paid tea/rest breaks provided by modern awards and enterprise agreements.
It is worth noting that in the judgment, Justice Logan commented that:
  • employees cannot simply use the pretext of needing to use the toilet as a device or strategy for avoiding work; and
  • it is permissible for an employer to place a reasonable restriction on employees accessing facilities.  However, a reasonable restriction must be “inherently fact specific” and should take into consideration the employer’s working environment and individual employees health. 
For example, a McDonalds Restaurant could reasonably prevent workers leaving hamburger patties or fries to burn to dash off for a drink. However, in circumstances where there is a particularly hot day and the air conditioning in a kitchen area is failing, to deny a sweating employee a drink of water could be deemed unreasonable and thus expose an employer to a claim for adverse action.
Workplace rights
Justice Logan determined that the right to toilet breaks and to drink water while at a workplace is a “workplace right”[2].  Accordingly, pursuant to section 340(1) of the FW Act, an employer must not take adverse action against an employee because they have exercised their workplace right to access toilet and drinking facilities.
So, unless there is a specific reason to justify the denial of a break in those circumstances, for example an employee wanting a drink from the kitchen when half of the shift team were on their morning tea break, employers may find themselves liable to settling costly general protections’ claims, or worse.
If an adverse action claim proceeds to the Federal Circuit Court or the Federal Court, employers could face:
  • pecuniary penalties;
  • an order for a dismissed employee’s reinstatement;
  • an order awarding compensation for the employee’s loss; and
  • in some circumstances, the employee being awarded costs.
Take Away
In light of the Federal Court’s decision, employers should review the terms contained within their enterprise agreements, employment contracts and policies concerning breaks.
Employers and HR professionals should ensure that:
  • where Paid Rest Breaks are provided for, practices and procedures are in place to ensure that, on all shifts, employees are rostered and directed to take Paid Rest Breaks; and
  • payroll systems are accurately recording and calculating Paid Rest Breaks; and uninterrupted unpaid meal breaks are allowed for to avoid the requirement to pay penalty rates.[3]
If employers are not sure how paid and unpaid meal/rest/tea breaks should be rostered and calculated, speak to one of Hicksons Workplace Relations team members. Our experienced team specialises in interpreting and applying employment case law and legislation and can guide you through these complex processes.

Post by Hicksons Partner, Warwick Ryan, and Solicitor, Saasha Greeney
[1] Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258
[2] For the purposes of section 341(1) of the FW Act
[3] Most modern awards contain terms which permit a day worker to take an unpaid meal break of not less than 30 minutes. However, in certain circumstances where the employer directs an employee to perform work during an unpaid meal break, the employee is to be paid overtime for all time worked until the meal break is taken – for further detail, see clause 27.1(b) of the Social, Community, Home Care and Disability Services Industry Award 2010 (Cth) [MA000100].

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