The Fair Work Commission (FWC) has recently decided that a paid meal break does not form part of the ordinary, or regular working hours established under Enterprise Agreements. The issue was resolved in Howard v National Patient Transport Pty Ltd (2021), where an Enterprise Agreement entitled ambulance drivers to a 30-minute paid ‘meal break’, specifying it as contributing to their regular ‘Ordinary Hours’. Dispute arose surrounding this latter point. If the FWC ruled in favour of the Agreement, it would have significant implications when regulating the employees’ wages, especially in the calculation of overtime as different rates of pay apply to hours worked outside of regular ‘Ordinary Hours’.

Under normal employment agreements, ‘meal breaks’ are an unpaid period within regular ordinary hours when an employee can take a break from their work, where they have the option to leave their place of work for the purpose of having a meal and socialising. This is in contrast with a ‘rest’ or ‘crib break’, which is a shorter allocated break time taken within the workplace which allow employees to ‘down their tools’ and eat a short meal. Employers require this break to be taken within the immediate workplace so that they can return to work at any time in the case of an emergency.

Even though ‘meal breaks’ are deemed to be ‘a longer period of uninterrupted rest’, employees are obligated to return to their place of work and could be considered ‘on call’ during this time, and they usually do not receive any payment for this period.

Under certain Awards and Enterprise Agreements, paid meal breaks can be negotiated, especially if the employees cannot access the usual freedoms associated with standard meal breaks.

In the case of Howard, under the negotiated Enterprise Agreement, employees were entitled to a 30-minute paid meal break, but it had to take place in a place specified by the employer, and they were obligated to return to work at any point during that time in the case of an emergency. It was submitted that this meal break should be incorporated in the employee’s usual Ordinary Hours. However, the FWC in the writer’s opinion correctly ruled that this meal break does not form part of the ordinary hours.


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