Fair Work distinguishes between meal breaks and time worked based on Agreement wording

Fair Work distinguishes between meal breaks and time worked based on Agreement wording.png

Fair Work distinguishes between meal breaks and time worked based on Agreement wording

The Fair Work Commission has arbitrated on an agreement clause regarding a claim on behalf of employees that a prescribed meal break should be regarded as time worked. If the application was successful, it would have implications for the length of shifts and the commencement of overtime, and other matters pertaining to the employment relationship.

The employee (the Applicant) works for National Patient Transport Pty Ltd (National Patient), a leading provider of Non-Emergency Patient Transport 24/7 services, which operates in Victoria, New South Wales, and Western Australia. The parties are covered by the National Patient Transport Pty Ltd Victorian Employees Enterprise Agreement 2019 (the Agreement).

The parties sought arbitration regarding whether the prescribed paid meal detailed in the Agreement counts as `time worked’ for the purposes of the Agreement. The relevant clauses are detailed below:


a) Employees are entitled to a 30 minute paid meal break for each rostered shift, and such break will be provided to commence no later than 5 hours from commencement of the shift.

b) An Employee who works a rostered shift in excess of 10.5 hours will be entitled to two 30 minute paid meal breaks.

The approach taken by the Commission when requested to arbitrate agreement clauses was summarised by Commissioner Tanya Cirkovic in the case, in the following terms:

The language of the Agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the Agreement to achieve what might be regarded as a fair or just outcome”.

The Applicant’s submissions centred upon claims that similar industry agreements counted the meal break as time worked, often containing explicit clauses stating as such. Indeed, they painted a picture that the business was akin to emergency patient removals. Further, they argued that the meal break should be regarded the same as a `crib break’, which has always been regarded as time worked.

Commissioner Cirkovic rejected most of the Applicant’s arguments.

In her determination, she noted,

“I agree with the Respondent that had the parties to the agreement intended for the meal break to count as time worked, they would have described the paid meal break as a `crib break’ or `crib time that counts as time worked’. Further, “in all the circumstances, I am not persuaded that there are justifiable grounds before me to displace the ordinary meaning of the words in the Agreement”.

The Commissioner further commented,

“I have also had regard to the SOPs and protocols governing the interruption of meal breaks that set out in express terms that employees are not required to work during their meal breaks”. She also rejected a suggestion from the Applicant that employees were `on-call’ during their meal break.

In her concluding remarks, the Commissioner stated, “I agree with the Respondent that on its proper textual and contextual construction, the 30 minutes paid meal break does not count as time worked for the purposes of the Agreement. I see no reason to depart from the ordinary meaning of the words. It follows, the answer to the question posed is no”.

H v National Patient Transport Pty Ltd (C2020/3327) 25 June 2021

For questions about award or Agreement meanings, interpretations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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