There has been a lot of comment in recent months about changes to rest and meal break entitlements. Based on those comments, one could be forgiven for thinking the world was ending. Take one union as an example: they described the changes as nothing less than a “radical attack” on the rights of Kiwi workers.
Stripping away the rhetoric, this is what has happened: as of 6 March 2015, the Employment Relations Act 2000 was amended. There were a number of changes made, including to rest and meal breaks. Before this date, the law was prescriptive: employees were entitled to a set number of breaks for specified durations depending on the number of hours worked.
What we have now is more flexibility, as there is no longer any prescribed number or duration of breaks. Instead, the obligation on an employer is now to provide rest and meal breaks that provide a reasonable opportunity during an employee’s work period for rest, refreshment, and attention to personal matters, and which are appropriate for the duration of an employee’s work period.
In short, this means that breaks are to be taken at the times and for the durations agreed between employer and employee. If they cannot agree, then an employer may specify reasonable times and durations for breaks that enable it to maintain continuity of service or production. But note that an employer must provide a reasonable opportunity to negotiate in good faith and agree the timing and duration of breaks before purporting to impose them on employees.
Something that is new is that rest and meal breaks may now be subject to restrictions. However, the circumstances in which this can occur are limited, as the restrictions must be:
- reasonable and necessary having regard to the nature of an employee’s work; or
- reasonable and agreed to by employer and employee (whether in the employment agreement or otherwise).
In addition, any restrictions must relate to the employee being required to continue doing work during what would otherwise be their break (for example, being available to answer a phone call or customer enquiry during a break)
Where breaks cannot reasonably be provided, or where an employer and employee agree not to take breaks, they can be replaced by reasonable compensatory measures. Examples may include additional payments, allowing later start times, allowing earlier finish times, and granting time off work equivalent to the length of the break.
As always, employers need to be somewhat cautious. Existing rest and meal break provisions in employment agreements continue to apply unless they are varied by the parties. So if you have an employee with specified breaks in their agreement, they will be entitled to those breaks unless you agree to vary them. Some employees will welcome the change and flexibility, others will not.
Above all else, the key thing to note is that, despite these changes, employees do remain entitled to breaks. The changes have not taken them away completely as some have alleged. Furthermore, rest breaks remain paid breaks. Nevertheless, now might be a good time to review your employment agreements in light of the changes.