Industrial Court Award No. 99 Of 1980
[Case No. 61 Of 1980] 28 August 1980
Subject Matter: claim for paid lunch breaks.
The Paper & Paper Products Manufacturing Employees Union ("the Union") entered into a collective agreement with MFC Sdn. Bhd. ("the Company") on 28.12.76.
Article 15 of this agreement inter alia reads:-
"(b) Factory
(i) Day Work
8.00 a.m. to 5.00 p.m. - Monday to Friday inclusive, with a one-hour unpaid lunch break.
8.00 a.m. to 12 noon - Saturday.
Total hours of work per week - 44 hours
Monthly-rated: Paid Rest Day
Daily-rated: Unpaid Rest Day
(ii) Shift Work
7.00 a.m. to 3.00 p.m.; or
3.00 p.m. to 11.00 p.m.; or
11.00 p.m. to 7.00 a.m.
Six days per week, each with a 40-minute unpaid lunch break.
Total hours of work per week - 44 hours
Monthly-rated: Paid Rest Day
Daily-rated: Unpaid Rest Day
All factory employees will be allowed paid tea breaks as follows:
Morning Shift - 9.30 a.m. to 9.40 a.m.
Afternoon Shift - 5.00 p.m. to 5.10 p.m.
Night Shift - 1.00 a.m. to 1.10 a.m.
Day Workers - 9.30 a.m. to 9.40 a.m. 3.00 p.m. to 3.10 p.m."
It is common ground that during the lunch break, there is a total shutdown, and the employees are free to leave the factory premises. The lunch break is fixed as follows:
Day Workers - 12 noon to 1.00 p.m.
Shift Workers - 12 noon to 12.40 p.m.
The Union contends that because the employees have to work a 9-hour day (Day Workers) and an 8-hour day (Shift Workers), they are entitled to paid lunch breaks under Proviso (i) to Section 60A(1) of the Employment Act 1955.
The Law
Section 60A of the Employment Ordinance 1955 (insofar as it is relevant) reads:
"(1) Except as hereinafter provided, an employee shall not be required under his contract of service to work -
more than six consecutive hours [Now: 5 consecutive hours] without a period of leisure;
more than eight hours in one day or more than forty-eight hours in one week; Provided that -
an employee who is engaged in work which must be carried on continuously may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in the aggregate during which he shall have the opportunity to have a meal;
(9) For the purposes of this Part, "hours of work" means the time during which an employee is at the disposal of his employer and is not free to dispose of his own time and movements."
As a result, the Company, on the other hand, says that it has not broken any law, and the proviso does not apply to its employees.
Findings of the Court
The Court found as a fact that neither the Day Workers nor the Shift Workers are required to work for more than six consecutive hours without a period of leisure, nor are they required to work for more than eight hours in one day.
The Court further found as a fact that no employee is engaged in work which must be carried on continuously for eight consecutive hours.
The Court has come to this finding on the ground that there is a complete and clean break from work during the lunch hour each day.
The fact that the lunch hour is fixed by the employer or that the employee is away from home for 8 or 9 hours each day is irrelevant.
The Court, accordingly, hold that:
the hours of work of Day Employees do not offend against Section 60A(1)(b) of the Employment Ordinance, 1955; and
Proviso (i) of Section 60A(1) of the Employment Ordinance, 1955 does not apply to the Shift Employees at this factory.
They are, therefore, not entitled to paid lunch breaks.
And for these reasons, the Court dismissed the claim for paid lunch breaks.
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