Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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One of the most common questions we hear from business owners and managers is whether a “38-hour workweek” includes lunch breaks.
It’s an important question. Getting ordinary hours right affects payroll, rosters, morale and your legal compliance.
The short answer is that unpaid meal breaks generally don’t count towards the 38 ordinary hours. But there are a few nuances you need to know about awards, enterprise agreements, paid vs unpaid breaks and the “reasonable additional hours” rule.
In this guide, we’ll break down what a 38‑hour week actually covers in Australia, how lunch and rest breaks fit into the calculation, and the practical steps you can take to stay compliant and avoid underpayments.
What Does “38 Ordinary Hours” Actually Mean?
Under the National Employment Standards (NES) in the Fair Work Act, 38 hours per week is the maximum ordinary hours for a full‑time employee (or the employee’s lesser agreed ordinary hours if they’re part‑time). Key points for employers:- Ordinary vs additional hours: Ordinary hours are the regular hours an employee is engaged to work. Hours beyond ordinary hours may be reasonable additional hours under the NES, or overtime if that’s how the relevant award or enterprise agreement defines them (often with penalties).
- Reasonable additional hours apply to everyone: The “reasonable additional hours” test applies to full‑time, part‑time and casual employees. This includes factors like the employee’s personal circumstances, workplace needs, compensation arrangements and any risks to health and safety.
- Averaging is possible: Ordinary hours can sometimes be averaged over a period if permitted by a modern award, enterprise agreement or a compliant arrangement for award‑free employees. Always check the instrument that applies to your team before averaging.
Do Lunch Breaks Count Towards the 38 Hours?
In most Australian workplaces, unpaid meal (lunch) breaks do not count towards an employee’s 38 ordinary hours. The 38 hours generally cover the time an employee is performing work, not time they’re relieved of duties to have a meal. Here’s how breaks are treated in practice:- Unpaid meal breaks: Typically 30–60 minutes per shift (exact timings vary). These are usually unpaid and are not counted as time worked.
- Paid rest/tea breaks: Shorter breaks (often 10–20 minutes). Where paid, they do count as time worked. If unpaid, they don’t.
How To Calculate a 38‑Hour Week (With Examples)
Once you separate paid work time from unpaid meal breaks, calculating ordinary hours is fairly straightforward. The key is to record start/finish times and breaks accurately.Step‑by‑step approach
- Confirm the instrument: Identify the applicable modern award, enterprise agreement or (if award‑free) the contract and policies that set out ordinary hours and breaks.
- Count only time worked: Add up the hours the employee is actually working. Exclude unpaid meal breaks.
- Include paid breaks: If the award or agreement provides paid rest breaks, include them as time worked.
- Check daily/weekly patterns: Ensure daily span, shift length and weekly totals comply with award or agreement limits (including any penalties or overtime triggers).
- Consider averaging (if allowed): If an award or agreement allows averaging, check the rules and document the arrangement.
Example 1: Standard office pattern with unpaid lunch
Hours: 9:00am–5:00pm with a 1‑hour unpaid lunch.- Time worked each day: 7 hours.
- Over 5 days: 35 hours of ordinary time.
- To reach 38 hours, you could extend three days by 1 hour (e.g. 8:30am–5:00pm) or roster an extra half‑hour across several days, provided this aligns with the relevant instrument.
Example 2: Paid tea breaks included
Hours: 8:30am–5:00pm; one 1‑hour unpaid lunch; two 10‑minute paid tea breaks.- Daily span is 8.5 hours.
- Unpaid lunch (1 hour) is excluded; two paid 10‑minute breaks (20 minutes total) are included.
- Time worked each day: 7.5 hours + 0.33 hours (20 minutes) = 7.83 hours (~7 hours 50 minutes).
- Over 5 days: ~39 hours 10 minutes, which may attract penalties or require adjustment depending on your award/agreement.
Example 3: On‑duty meal break
If an employee’s meal period is on duty and paid, it is counted as time worked. You’ll need to verify that the award, agreement or contract permits on‑duty meal breaks and set clear procedures for when they apply.Averaging ordinary hours
Some awards and agreements let you average ordinary hours across a roster cycle (for example, over two or four weeks). When averaging is permitted, you can roster more than 38 hours in one week and fewer in another, as long as the average across the cycle is 38 ordinary hours and you comply with any penalty/overtime provisions and daily limits. Always check the rules in the specific instrument before implementing averaging, and document the arrangement so it’s clear to managers and staff.What Do Awards, Enterprise Agreements and Contracts Say About Breaks?
Because the NES doesn’t prescribe break lengths, the details sit in awards, enterprise agreements and contracts. These documents typically cover:- When a meal break is required: For example, a meal break after a certain number of hours worked.
- How long the break must be: Often 30–60 minutes for a meal break, and shorter rest/tea breaks.
- Whether breaks are paid or unpaid: Paid rest breaks count as time worked; unpaid meal breaks don’t.
- On‑duty breaks: Whether on‑duty meal periods are allowed and how they are paid.
- Daily spans and overtime triggers: Such as maximum ordinary hours per day and penalty periods.
Part‑Time, Casual and Award‑Free Staff: Does Anything Change?
The principles are consistent: unpaid meal breaks don’t count as time worked; paid rest breaks do. But there are a few points to be aware of for different types of employment.Part‑time employees
- Ordinary hours are agreed: A part‑timer’s ordinary hours are set in their contract and are pro‑rated compared to a full‑time employee’s 38 ordinary hours.
- Breaks apply the same way: Break entitlements follow the relevant award or agreement. Where breaks are unpaid, they’re not included in the ordinary hours.
Casual employees
- No guaranteed hours, but limits still apply: Casuals don’t have guaranteed weekly hours, but the “reasonable additional hours” test still applies to hours they actually work.
- Break entitlements still apply: Most awards provide break rules for casuals that mirror or closely track full‑time/part‑time provisions.
Award‑free employees
- Set it out in writing: If an employee is award‑free, make sure their Employment Contract and your policies clearly set ordinary hours, break entitlements and how you record time.
- NES still applies: The 38‑hour ordinary week (or lesser agreed ordinary hours) and reasonable additional hours rule still apply.
Rostering and record‑keeping
Whatever the employment type, accurate records are essential. Use a system that captures start/finish times and break periods so you can demonstrate compliance and resolve any queries quickly. Many employers also review their processes against general rostering requirements to ensure the right approvals and practices are in place.Compliance Tips for Employers (and Common Pitfalls)
Breaks and ordinary hours touch payroll, safety and culture. A few practical steps can help you avoid issues.1) Identify your coverage
Confirm which modern award or enterprise agreement applies to each role. If an employee is award‑free, rely on well‑drafted contracts and policies, supported by your WHS risk management.2) Put it in writing
Document ordinary hours, breaks, on‑duty meal arrangements (if any), and how you record time. Update your Employment Contract templates and consider a break and rostering section in your Workplace Policy.3) Train managers
Make sure supervisors understand when breaks must be given, which breaks are paid vs unpaid, and how to correct rosters if staff miss a required break.4) Track time precisely
Use reliable timesheets or digital systems that record breaks. This protects you and your team, and makes payroll smoother.5) Review overtime and penalties
If employees regularly exceed ordinary hours, confirm whether those hours are reasonable additional hours or overtime under the award, and pay the right penalties. Where relevant, check your processes against overtime rates and penalty periods in the applicable instrument.6) Keep an eye on WHS
Breaks support health and safety. Even if a contract is silent, WHS risk assessments may justify minimum breaks for certain roles or shift lengths, independent of award obligations.7) Avoid common mistakes
- Counting unpaid meal breaks as time worked: This can create underpayment risks if you rely on those hours to meet the 38 ordinary hours.
- Missing paid rest breaks in payroll: If rest breaks are paid under an award, make sure they’re included in time worked.
- Assuming all patterns are permitted: Daily spans, overtime triggers and averaging rules vary by award or agreement - don’t apply a blanket approach.
- Not updating documents when instruments change: Awards are updated periodically. Set a calendar reminder to review your templates and policies at least annually.
Key Takeaways
- Unpaid meal (lunch) breaks are generally not counted towards the 38 ordinary hours; paid rest breaks are counted as time worked.
- The NES sets 38 weekly ordinary hours (or lesser agreed hours) and the “reasonable additional hours” rule applies to all employees, including casuals.
- Break lengths and whether they’re paid are set by awards, enterprise agreements or contracts - award‑free employees rely on well‑drafted documents and WHS considerations.
- Only count hours actually worked when calculating ordinary time; use accurate time records and include paid rest breaks where required.
- Check daily spans, overtime triggers, penalty periods and any averaging rules in the instrument that applies to your team.
- Capture the rules in your Employment Contract and Workplace Policy, train managers and review your approach regularly to stay compliant.
