NMWM08210 - Working time: salaried hours work: absences: breaks from work

Relevant legislation

The legislation that applies to this page is as follows:

  • National Minimum Wage Regulations 2015, regulation 23(1)

General

For a worker performing salaried hours work, the times when a worker is taking a break, such as a lunch or rest break, need to be considered to identify both the time treated as worked (NMWM08070) in the pay reference period and the hours which are taken into account for any excess hours calculation (NMWM08110).

Only where a worker is contractually entitled to, and receives, their normal salary for rest breaks is the time for those breaks included within their basic hours (NMWM08030).

However, the time actually spent taking breaks for hours falling within the basic hours is always included when considering whether excess hours have been worked.

For example, a monthly paid worker performing salaried hours work has a calculation year of 2080 basic hours in a calculation year. The contract provides for 8 hour working days of which 1 hour is a paid lunch break.

  • The paid break is included in the basic hours and the time treated as worked for each pay reference period is 173.33 hours (NMWM08035).
  • However, for the purposes of considering the excess hours position, the hours taken into account are (1) the actual hours worked in the pay reference period plus (2) the hours spent taking the entitled lunch breaks. For example, a worker actually working 9:00 to 12:00 and 13:00 to 17:00 (7 hours) with a 1 hour lunch break, will be considered as working 8 hours for excess hours purposes.

Where salaried hours work is being performed, breaks, such as lunch or rest breaks, are basically absences (NMWM08220).

Please note that National Minimum Wage legislation itself does not provide entitlement to payment for breaks. It is a common misconception where salaried hours work is performed that all breaks taken during normal working time must be included within basic hours and subsequently paid. In fact, breaks are only included within basic hours for salaried hours work purposes where a paid break forms part of the contractual arrangement.