Fair Work to determine if it’s ok to lie down on the job, in landmark case

Two Canberra Hospital cleaners sacked for taking a nap on their unpaid break have taken their case to the Fair Work Commission after the contractor involved refused to back down, the Sydney Morning Herald reported this week.

The case will no doubt be of interest to those in the early childhood education and care (ECEC) sector, with union United Voice also having a prominent presence in the sector, and with the October 2017 amendments to the Education and Care Services Regulations, concerning the coverage of educator short breaks.

At the time of the 2017 changes, the New South Wales branch of the Australian Childcare Alliance were concerned about the impact to operational costs of requiring educator breaks to be covered.

In the Guide to the National Quality Framework, ACECQA offers the following guidance in relation to break periods:

The National Regulations require the educator-to-child ratio to be maintained at all times no matter what activity the children or the educators at the service are undertaking. Some jurisdictions have specific provisions which modify these ratio requirements when educators are taking short breaks and are not working directly with children (Queensland, Tasmania, South Australia and Western Australia). Services should check if specific provisions apply and contact the regulatory authority for advice about jurisdiction specific regulations or guidance.

In the Canberra case, shortly to go before Fair Work, two cleaners reportedly lost their jobs after falling asleep during a designated, unpaid break. Permanently employed by the hospital, the cleaners used their break to sleep in an unused waiting area, which their employer labelled a “serious breach of (the company’s) code of conduct”.

United Voice are said to be representing the women, saying the case had been referred to Fair Work after mediation attempts failed. The Sydney Morning Herald quotes United Voice ACT branch secretary Lyndal Ryan as saying she was surprised at the hardline approach, before welcoming the hearing.

“Let’s have it and see if the commissioner thinks it’s OK to sleep on your break,” Ms Ryan reportedly said.

“If the commissioner thinks you can’t, that will be interesting news to every worker in the country.”