Rest and Meal Breaks

25 August 2015

Entitlement

The former prescriptive approach to rest and meal breaks which was unworkable in many situations, is repealed.  However, employees are entitled to rest and meal breaks that provide a reasonable opportunity for rest and refreshment and which are appropriate for the duration of the work period.

An employer may place certain restrictions on breaks where:

• It is reasonable and necessary having regard to the nature of the employee’s work, or
• If the above does not apply, it is reasonable and agreed to by the employee (whether in an employment agreement or otherwise).

and relate to one or more of the following:

• The employee continuing to be aware of his or her work duties or if required continuing to perform some of those duties during the break;
• The circumstances in which the employee’s break may be interrupted;
• The employee taking the break in the workplace or at a specified place within the workplace.

Rest and meal breaks are not defined, but the entitlement to rest breaks is to paid rest breaks.

Timing and Duration of Breaks

An employee must take rest and meal breaks:

• At the times and for the duration agreed with the employer (noting that the employer is obligated to provide the employee with a reasonable opportunity to negotiate and agree on such matters),
• But in the absence of such agreement, at the reasonable times and for the reasonable duration specified by the employer. An employer may specify reasonable times and durations that, having regard to the employer’s operational environment or resources and the employee’s interests, enable the employer to maintain continuity of service or production.

An employer is exempt from providing rest and meal breaks:

• To the extent that the employer and employee agree on compensatory measures; or
• If the above does not apply, only to the extent that, having regard to the nature of the work, the employer cannot reasonably provide the employee with rest and meal breaks.

Compensatory Measures

To the extent an employer is not required to provide rest and meal breaks the employee must be provided with compensatory measures.  In this context a “compensatory measure”:

• Means a measure designed to compensate an employee for a failure to provide rest breaks or meal breaks.
• Includes a measure that provides the employee with time off work at an alternative time, for example by allowing a later start time or an earlier finish, or an accumulation of time off work to be taken on one or more occasions.

Compensatory measures must be reasonable.  To avoid doubt, if an employee is provided with time off at an alternative time, the employee must be provided with equivalent time off on the same basis as the break would otherwise have been taken. An employment agreement that excludes or reduces an employee’s entitlement or excludes compensatory measures has no effect.

But note the starting point is the employment agreement.  If it contains express provisions for breaks then employees are entitled to those breaks, unless compensatory measures are mutually agreed in exchange for certain restrictions.