We recently identified a potential risk with one of our clients regarding their employee break policy which could theoretically could lead to an underpayment claim despite the employer “trying to do the right thing” and meeting with the requests of their employees.  This is a case where trying to do the right thing could be doing the wrong thing so wanted to share this with our broader audience.

So to set the scene here, the award covering the employees explicitly states that an employee will be afforded “Two 10 minute paid rest breaks (one to be taken in the first half of the shift and one in the second half).”

The employees of this business came to their line manager saying that a 10 minute break was not long enough to go to the bathroom, have a quick snack or do whatever else they wanted to do during their break. As an alternative to the 2 10 minute breaks, they requested a single 15 minute break with the additional 5 minutes to be made-up throughout today on an ad hoc basis. On the surface, this appears to be a fair and reasonable deal made at the request of the employees. However, as is the case with many HR matters things and not always what they seem.

if this was ever challenged, the fair work ombudsman might view that the second break of 10 minutes was never taken. And therefore, the workers were owed 10 minutes wage or 16.7% of an hours wage. Now this might not sound like a lot however when multiplied by a large number of employees across a significant period of time may account to a large underpayment claim.

Whilst we agree overall the likelihood of such a claim being made is unlikely, it is not outside the realms of possibility. We only have to look at the case of the SDA union against McDonald’s which commenced in 2014 and still ongoing along similar lines for evidence that this may become an issue.

So if your business requires some assistance when it comes to paid breaks or any other HR or workplace relations matter please do not hesitate to reach out to On Demand HR by visiting our website at .

That’s all for this short update and very much looking forward to seeing you in the next session.