Employee’s break entitlements are provided by industrial instruments such as modern awards and enterprise agreements. In the Hospitality Industry (General) Award 2020 (‘HIGA’) break entitlements are provided by clause 16. This article provides a high-level overview of break entitlements for employees who are covered by the HIGA, classified as Managerial Staff (Hotels) paid a salary per clause 25, and award/agreement free.
HIGA Break Entitlements under clause 16
Clause 16.2 of the HIGA provides the following breaks:
|Hours worked per shift||Breaks|
|More than 5 hours and up to 6||· Employee may elect to take an unpaid meal break of up to 30 minutes in accordance with clause 16.4—Request for unpaid meal break.|
|More than 6 hours and up to 8||· An unpaid meal break of no less than 30 minutes (to be taken after the first 2 hours of work and within the first 6 hours of work).|
|More than 8 hours and up to 10||· An unpaid meal break of no less than 30 minutes (to be taken after the first 2 hours of work and within the first 6 hours of work).
· One 20-minute paid rest break (may be taken as two 10-minute paid rest breaks).
|More than 10 hours||· An unpaid meal break of no less than 30 minutes (to be taken after the first 2 hours of work and within the first 6 hours of work).
· Two 20-minute paid rest breaks.
Breaks should be taken as uninterrupted time.
Additional breaks (Clause 16.7)
The HIGA requires the employer to provide an additional 20-minute paid rest break if an employee is required to work more than:
- 5 continuous hours after an unpaid meal break; or
- 2 hours of overtime after the employee finishes their rostered hours.
The overtime worked does not compound on the break entitlements under clause 16.2. For example, an employee who works a 7-hour shift, followed by 3 hours of overtime will be entitled to:
- An unpaid meal break of no less than 30 minutes (as they worked more than 6 hours); and
- An additional 20 minute paid rest break (as they worked more than 2 hours of overtime after their rostered hours finished).
If unpaid break is not allowed (Clause 16.5 and 16.6)
If an employee works more than 6 hours in a shift, and their employer does not allow them to take an unpaid meal break, the employer must pay the employee an additional 50% of the employee’s ordinary hourly rate:
- from 6 hours after the employee started working on that shift;
- until the employee is given the break or the shift ends.
This payment is only owed where the employee is not allowed to take the unpaid break. It is not payable if the employee chooses not to take the available break. Clause 16.5 provides an example of how to pay the additional 50% of the employee’s ordinary hourly rate.
Employee opting to not take breaks
The QHA has received queries from members regarding employees who request to, or choose not to, take their breaks. The QHA recommends that employers enforce breaks by reminding or directing employees to take their allocated breaks and ensuring they have written records of these discussions. If an employee refuses to comply with a direction, the employer may consider disciplinary action. It is recommended that employers enforce the taking of breaks to meet their obligations under the Work Health and Safety Act 2011 (Qld), and to mitigate the risk of future claims regarding breaks.
Managerial Employee paid a salary per clause 25
Employees classified as Managerial Staff (Hotels), paid a salary per clause 25 of the HIGA, are not entitled to the terms of the terms and conditions provided in clause 16. This means the break entitlements provided in clause 16, as outlined in this article, do not apply to these employees. However, employers still have work health and safety obligations and should ensure these employees are still provided and take sufficient breaks.
Award and Agreement free employees
Award and agreement free employees do not have prescribed breaks entitlements from an industrial instrument, as a modern award or agreement does not apply to them. Employers should still ensure these employees are provided and take sufficient breaks. These employees may have break entitlements provided in their employment contract.
Members who wish to gain further information on break entitlements are encouraged to review the QHA’s Guide on Meal Breaks under the HIGA, and
are encouraged to contact the Employment Relations Department with any queries for a confidential discussion by calling 07 3221 6999 or emailing email@example.com.