Rest/meal breaks are mainly specified in awards or Enterprise Agreements - but not necessarily in individual agreements. But it's still an OHS issue.
Meal or rest breaks (when these should be taken, how often and so on), while having obvious OHS implications, are not covered specifically in OHS legislation. The specifics of meal and other breaks should be regulated under the 'industrial' system. This means checking the relevant award or Enterprise Agreement.
If workers are working under individual contracts, or Australian Workplace Agreements (AWAs), they may not even be covered at all! Employers could ask workers to 'agree' to sign agreements that did not provide for meal or other forms of breaks - and while the previous Labour government began to make some changes, meal breaks were not included in the 'National Employment Standards'.
In most awards, workers are required to work for five hours before receiving a properly scheduled meal break. Most, if not all, EBAs or EAs (Enterprise Bargaining Agreements, or Enterprise Agreements) have specific clauses on meal breaks. Some awards specify that workers are entitled to 'rest pauses' (for example, the Children's Services Award gives employees who work four hours or more the right to take a paid rest pause of ten minutes).
However, under occupational health and safety laws, the employer must provide a healthy and safe workplace, and this includes safe systems of work. There are many cases where expecting workers to work for five hours without a break is unreasonable and a risk to their health and safety. Workers under AWAs could be even more at risk. Workers should refuse to sign any agreement that does not provide for set meal breaks AT LEAST after five hours of work.
Duties under OHS legislation
Despite what workers may or may not be entitled to under the IR system, an employer still has the general duty of care under the OHS Act to provide safe systems for work for employees (section 21). This includes ensuring that workers have adequate rest breaks or rest periods to control risks, to relieve fatigue and to be able to eat a meal. Rest breaks are an effective way to control certain workplace health and safety risks and can also increase productivity.
Rest breaks or rest periods are important for:
- Heavy manual work
- Tasks needing concentration and attention to detail
- Highly repetitive and/or monotonous work
As well as rest breaks (that is periods of time where there is no work-related activity, meaning the worker is able to rest all parts of the body), the employer should consider systems of work that allow for changes of activity and provide task variety, reducing the onset of physical and mental fatigue. Job rotation, often implemented to reduce the risks of prolonged repetitive movements, is an example of such a system of work. It is important that the selection of tasks in job rotation should allow for a change in postures and movements and the resting of muscles. WorkSafe Victoria has issued a Guidance Note Job rotation doesn't eliminate manual handling risk which explains that simply rotating jobs is not effective unless certain conditions are met.
How should rest breaks be scheduled?
The scheduling of rest breaks depends on the individual worker (age, health, gender, physical capacity, whether they are experienced in the job, or returning from a long break), the nature of the task, and the physical work environment.
It has been shown that having several short breaks is more effective in terms of productivity than allowing one long rest break - even when the total rest time was the same. Advice from the Queensland regulator advised that while two coffee breaks and lunch rest schedule is adequate for most jobs, there are some exceptions. These include:
- For work requiring physical exertion, more frequent rest breaks will help cut down fatigue and reduced productivity. If workers are unfit, or are returning from a long break (eg annual leave) they will usually need more frequent and longer rest breaks than fit workers.
- For work requiring continuous monitoring or inspection, more frequent rests are required to avoid reduction in proficiency. Continuous monitoring without breaks for periods of only two hours has been shown to lead to a 20% reduction in efficiency and increases in human error.
- For work in hot or cold conditions, increased rest periods should be scheduled to avoid the effects of heat or cold.
- For highly repetitive and monotonous work, frequent rest periods are required. This will not only prevent boredom and reduce the potential for human error, but will also reduce muscle fatigue caused from long periods in sustained postures.
- For keyboard or data-entry work, it is recommended that keyboard operators adopt a ten minute change of activity break after 50 minutes of continuous keying. This could be alternative work such as photocopying or filing.
- Tasks requiring high levels of concentration such as problem solving and complex mental tasks will need more frequent rest breaks to minimise human error and fatigue.
Rest periods should be taken when workers are showing signs of fatigue and reduced performance.
Further, workers must be allowed to go to the toilet when they need to - NOT allowing workers reasonable time and access to toilets puts their health at risk and this is a breach of the employer's duty of care. In addition, the provision of toilet facilities is a legislated duty - so the law recognizes that workers need to use toilets during work hours!!
Not being able to go to the toilet when you need to can cause a range of health problems, including digestive and urinary tract problems and kidney infections which can develop into more serious health conditions. Also people on certain medications may need to visit the toilet on a more frequent basis and working in the cold (for example on construction sites or in food cold stores) may also increase the need to use the toilet. Women may need to go to the toilet more frequently when menstruating, when pregnant and during menopause, while prostate problems in men may mean they may need to urinate more frequently. [from the UK's TUC guidance for representatives: Give us a (Loo) break! - available to download here]
September 2020 Ruling on breaks supports rights of workers to get a drink, go to the toilet
Employers have a WHS obligation to allow workers access to toilet and drinking facilities and cannot restrict such access to scheduled breaks, the Federal Court has confirmed after finding a major employer misled young workers on this issue in a Facebook post. Without going into too much detail, the Retail and Fast Food Workers Union (RAFFWU) launched proceedings against Brisbane-based McDonald's franchisee Tantex Holdings Pty Ltd after its general manager said on a staff Facebook page that if workers wanted to enforce the 10-minute-break rule then this break would "be the only time you would ever be permitted to have a drink or go to the toilet." Workers had complained that they were not getting their scheduled breaks.
Justice John Logan found Tantex had breached the Fair Work Act, and said, "Denial of access as needed to toilet facilities or drinking water could, as a matter of ordinary life experience, have adverse health and safety ramifications for an employee and thus enliven the primary statutory duty of an employer found in section 19 of the [Queensland] WHS Act."
Read more: Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd  FCA 1258 (31 August 2020)
Thousands of workers die or are injured because of on-the-job accidents each year. Many more are exposed to unhealthy conditions that cause serious illnesses years later.
The short answer to this is "There aren't any" - Read more....read more
There are increased risks when working alone - but in legal terms, there is no simple answer....read more