Treating your employees well should always be part of your business practices and workplace culture. However, it’s important to know that your employees’ work environment and its standards are also protected under Australian laws. 

More specifically, Fair Work Australia sets the standard for work breaks that employees are entitled to. They regulate how employers provide these work breaks and take care of legal action taken in case certain employers do not meet these standards. 

In this article, we’ll go through current standard of work breaks that employers should be aware of in 2023, as well as other relevant employer obligations in Australia. 

What Is Fair Work Australia?

Fair Work Australia is the commission that oversees work standards for all Australian employees. They oversee important matters such as: 

If an employee feels their rights have been violated, they are eligible to lodge a complaint with the Fair Work Ombudsman and have the matter investigated.  

What Does Fair Work Australia Say About Work Breaks?

Fair Work believes employees are entitled to work breaks, however, breaks will  depend heavily on the industry and hours being worked by the employee.

Breaks are divided into two categories: rest breaks and meal breaks. 

Rest breaks are 10 minute breaks that give the employee a chance to step away, also known as a tea break. A meal break is often the actual lunch break that gives employees a chance to eat a meal. 

In order to find out how many breaks you are entitled to based on your industry and employment status, click here

Fair Work Australia Break Entitlements

Fair Work Australia provides break entitlements, however, it’s important to remember these are highly dependent on the type of work being done by the employee, the industry they belong to and the hours they work. 

You may wish to check the specific award that your employee falls under to ensure you are compliant. 

Despite the industry and type of work, all Australian employees have the right to fair working conditions – this includes reasonable break times. 

How Many Hours Can You Work Without A Break In Australia?

In most cases, employees are required to work for 5 hours before they can take a break. 

In terms of breaks between shifts and days, most full time employees work about 38 hours a week for 7.6 hour days. Adequate breaks between shifts should also be taken into consideration, as employees need proper rest and time off before coming back to the next day. 

Do Employees Get Break Entitlements After Working For 5 Hours?

Yes, employees that have worked five hours or more are entitled to a break in most cases. However, this should be reasonable. If it is not in the employee’s best interest to work for five hours straight without a break, then it’s important for employers to adjust as they could be creating an unsafe work environment. 

Forcing employees to work for 5 or more hours without a break is likely to be considered a violation of their rights. 

Jim continuously lifts heavy equipment as part of his job in a warehouse. In order to give his body the rest it needs, Jim’s Employment Contract allows for breaks at every hour. 

What Does Fair Work Say About Lunch Breaks?

Lunch breaks or meals breaks are 30- 60 minute breaks that give the employee a chance to eat. 

The industry, employment type (permanent, full time, casual) and entitlements available to the specific employee will determine whether they are paid for these breaks, when they can take them and how often. 

Despite the variations and lack of uniform rule, it should be noted that all lunch breaks should be rational and fair to the employee. If this is not the case, then employees have the right to raise their concerns regarding their working conditions.  

What Other Breaks Are Employees Entitled To?

Among other things, employees are also entitled to toilet and water breaks. Denying employees the right to use that bathroom and not having the proper facilities in place is a violation of every employer’s basic duty of care towards their employees. 

In Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd, the workers union brought a case against the owners of a McDonalds franchise for not allowing their employee bathroom and water breaks. This was seen as a violation of employee rights and they were ordered to pay damages. 

The case reinforces the right of employees to be able to take adequate breaks to use the bathroom and keep hydrated. 

What Are Awards In Australia?

Awards are legally binding documents that outline the minimum pay rates and working conditions for employees across Australia. There are different awards for each industry and over 100 hundred of them. 

Employers will need to be aware of multiple awards in their workplace for different positions as well. You can visit Fair Work Australia to know more about the awards you owe your employees. We know it can get a bit confusing, so don’t hesitate to reach out to one of our Regulatory Compliance Experts for some professional guidance.

Alternatively, employers could opt to have a registered agreement as opposed to calculating awards. If a registered agreement is in place, then awards don’t usually need to be sought out.

However, the agreement should be approved by the Fair Work Commission before it can come into effect. 

Janice runs her own hair salon and has three employees working for her. Two are hairdressers and the other is a receptionist. 

Prior to Janice’s employees starting their jobs at her salon, Janice ensured she had a registered agreement made which contained the correct entitlements for each employee. Janice then sent the agreement to the Fair Work Commission for approval, before she presented it to her employees for signing.

Drafting the right kind of agreement can be tricky, so we always recommend getting in touch with a legal expert. That way, they can help draft a contract that’s fair for all parties and in line with the relevant regulatory requirements.

What Are My Employer Obligations Regarding Breaks?

As an employer, it’s your duty to ensure that your employees are receiving the correct break, with consideration of the nature of their work as well.

Breaks are important, as they allow the employee to rest and recuperate. Not doing so can be damaging to the employee’s physical and mental health. It can also affect their productivity in the workplace. 

You have a strict obligation to make sure the workplace and working conditions you set for your employees does not cause them distress in any way. This is known as your workplace health and safety obligations. 

What Is Workplace Health And Safety?

Workplace health and safety obligations are set by Safe Work Australia. Essentially, Safe Work Australia sets the minimum standard employers need to be engaging in to create a safe space for their employees. 

With the new closing loopholes laws coming into effect in 2024, work health and safety is more important than ever. The changes have amended the Work Health and Safety Act to strengthen workplace safety offences as well as introduce a tougher penalties regime. You can read more about it here

Being legally compliant and tending to your employer obligations under workplace health and safety regulations can look like: 

  • Making sure the work space is free from any harm 
  • Providing employees with the right equipment to conduct work 
  • Communicating openly with employees about any safety concerns
  • Enforcing professional conduct standards 
  • Training seminars for workplace safety
  • Creating a staff handbook 
  • Having a complaints and investigation process

Remember, workplace health and safety laws apply to all Australian employers, regardless of whether their employees work from home or in person. 

The way you enforce workplace health and safety will depend specifically on your workplace, however, we can aid with getting the right policies in place so your workplace is compliant with the relevant regulations. 

We can also help you draft an appropriate Work From Home Policy so that your flexible work arrangements are kept in check and do not threaten your efficiency or other workplace practices. 

Key Takeaways

Breaks are an important part of the job and something all employees are entitled to. It’s an employer’s job to ensure their employees are receiving adequate breaks, and to ensure they maintain good physical and mental health in the workplace. 

To summarise what we’ve discussed: 

  • The Fair Work Commission is in charge of setting workplace standards for Australians
  • Breaks are an employee’s right, however, the kind of breaks they are entitled to will depend on a number of factors 
  • Generally speaking, employees are entitled to breaks after 5 or more hours of working
  • All employees are entitled to toilet and water breaks throughout their work day 
  • Awards determine minimum pay rates and work conditions for employees across various industries 
  • Breaks and other workplace health and safety obligations are part of every employer’s duty of care towards their employees 

If you are unsure about your employer obligations under Australian laws, our lawyers are happy to answer your questions and provide you with the right resources to assist you. 

You can reach us at 1800 730 617 or for a free, no-obligations chat.

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