In a case before the Federal Court, the Commonwealth Bank is facing claims that it denied 3,000 workers their entitlement to 10 min breaks back to 2014, amounting to $45m in underpayments. Paid or unpaid, breaks are often a cause for concern and examination when it comes to wage compliance, particularly in a retail setting where staff availability and customer demand may result in delayed or denied breaks. This weeks HR Highlight will explore this case and its context in the fuel wholesale and retail industry.

Case Review

The Union bringing the case has argued that the Enterprise Agreement covering the Bank provides for 10 minute paid rest breaks in addition to the 45 minute unpaid lunch break.  The Union argues that due to staff shortages the 10 minute rest break is almost never taken.

The Bank, in its response has argued that as the 10 minute rest break is paid there is no financial loss to the staff if the break is not taken and as such there is no underpayment to be answered for.

Learnings for All Businesses

“The case is yet to be heard but will likely cause close scrutiny on what a paid break is and what it means when a worker works through the paid break.  There are likely to be two sides to the discussion of this particular break, with the union arguing that by constructing the break as a paid rest in the Agreement, and then not allowing a paid rest, that 10 minutes actually amounts to work outside of the guaranteed hours and thus should attract overtime” hypothesises ACAPMAs Elisha Radwanowski

“What all businesses should take away from this case is that breaks matter.  That understanding how breaks are supposed to work according to the applicable employment instrument is vital to ensuring compliance, and that failure to understand break requirements and adhere to them, could result in large claims such as this one” continues Elisha.

“The Fair Work Act and the applicable employment instrument (Award/EBA) will outline the specific minimum requirements for breaks, including when they apply, if they are paid or unpaid and how additional breaks should be addressed.  Failure to understand and comply with these requirements is likely to lead to underpayments and issues” concludes Elisha.

Fuel Wholesale and Retail Concerns

In fuel wholesale breaks are more than a chance to have a cup of tea, fatigue management breaks are about saving peoples lives and are vital to drivers.

As per the Road Transport and Distribution Award 2020;

  • an unpaid meal break of between 30-60 minutes must be allowed between 3.5 and 5.5 hours after starting ordinary hours, and if the meal break is not allowed then all time after 5.5hours from commencement will be paid at 200% of Base Rate to compensate for the lack of unpaid meal break (clause 16.1)
  • a paid  overtime meal break of 20 minutes is to be provided if the employee is going to be working 2 hours or more overtime (to be taken before starting overtime or as soon as possible after starting overtime) (clause 16.2)
  • an additional paid long overtime meal break of 20 minutes is to be provided after completing 4 hours overtime (and every 4 hours of overtime until overtime is finished) (clause 16.2)

“It is not uncommon for distribution businesses to pay fuel drivers for ALL breaks, not just overtime breaks, due to simpler payroll processing and to ensure that drivers are encouraged to take theses vital rests” notes Elisha.

As per the Vehicle Repair Service and Retail Award 2020;

  • The typical meal and rest breaks do not apply to a person who is engaged to work on a fuel retail site (clause 26.1.a and 26.2.a)
  • Breaks are to be available to any employee who has worked more than 5 hours
  • Breaks are to be either; A paid crib break of 20 minutes while maintaining customer service and counting as time worked; or; where the business decides to offer a break away from the workstation that break can be unpaid and taken in accordance with 26.1
  • Even with crib breaks a retail fuel site worker is able to lock the site to go to the bathroom, this is not counted as a break

“Crib breaks for retail fuel staff is one of the (many) industry peculiarities.  As an oddity it is something that can be a point of confusion and tension, so we advise members to ensure they are discussing what crib breaks are and how they work to new employees, who may be used to the more standard break application” notes Elisha.

“The requirement for staff to remain at the workstation and to pause their break whenever they need to serve a customer is a function of the unique environment that fuel retail exists in.  As a threshold mass hazard facility that is accessible to the public it is vital that safe fuel dispensing is monitored and emergency response is available at all times, this, combined with the reality that most service stations are single staff locations, makes the traditional break unsafe and impractical, as a result crib breaks are provided for” explains Elisha.

“This case is a reminder to all businesses to review the requirements and operations of breaks in their business.  Even compliant break operations can be a source of tension and concern if there is not adequate communication.  Clear communication on how breaks operate, how they will be remunerated, and in the case of fuel retail, how the employee can access the bathroom, are all vital to ensure the harmonious and compliant operation of the site” concludes Elisha.

Here to Help

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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