Issue 2 2022 - Paid tea breaks not given: unions now pursuing huge underpayments and fines

Updated: Jun 28

The FSU is the latest union to sue an employer for allegedly failing to allow paid tea breaks. In its latest campaign, it claims Commonwealth Bank workers could be owed up to $15,000 each. This follows a similar Federal Court class action launched by Shine Lawyers against McDonalds, and a related SDA case against specified franchisees. How will you ensure your organisation is not vulnerable to this latest trend?


In recent years, underpayment claims have often successfully included overtime payments when employers could not prove that meal breaks were taken. Proactive organisations have adapted time keeping records to capture this important evidence, but paid tea breaks are rarely recorded in timesheets. Ensuring such breaks get taken is often informal and frequently overlooked when work is busy.

Breaching instruments

Employers who do not ensure that paid rest breaks in awards and agreements are taken could be liable for penalties for breaching the instrument. Underpayments may also apply depending on the terms. On its campaign website, the FSU states:

If you’ve not been given these ten-minute paid breaks as per your entitlement, then this is extra time that you’ve given the Bank, and that you’re entitled to be paid for.

Court decisions have stressed that employers must expect meaningful deterrent penalties if they cannot provide evidence of how the organisation acted proactively to determine that entitlements were met (rather than simply trusting local managers to see that it happens and assuming that it does).

Employers sometimes see enforcing tea breaks as petty and “micro-managing”, but the risk is real. How will you ensure that supervisors know about and enforce the taking of paid tea and rest breaks in a way appropriate to your workplace culture and workflows?

Require further information/assistance?

If you require further information or advice, please contact your Consultant.


EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.