From 6 May 2019, the statutory regime around rest and meal breaks in the Employment Relations Act (Act) has returned to a prescriptive approach. The changes replace the more flexible provisions that had been introduced by the previous National-led government in 2014.

The statutory changes apply to all employers, with limited exceptions for national security (GCSB and SIS) and essential services (which include water supply, energy production/supply, certain port services, certain air transport and port services, prisons, hospitals amongst others).

From 6 May, the duration of an employee’s work period will determine the minimum entitlement to rest and meal breaks. For example, if an employee’s work period is more than 6 hours but not more than 8 hours, the employee is entitled to two 10-minute paid rest breaks, and one 30-minute unpaid meal break.

While most employers will accept that there are potential productivity, safety and morale benefits in ensuring employees have sufficient time to rest and refresh during a work period, for manufacturing businesses (and other sectors), the issue of break timing, however, could be a headache. It may not always be possible to have all staff ‘down tools’ and cease production at the same time. The Act recognises this issue.

The starting point is that the timing of the rest and meal breaks should be agreed where possible between employer and employee in good faith. If there is no agreement, the timing is fixed by the Act, generally at a mid-point during the relevant work period. There is some leeway for an employer in the absence of agreement: the provisions allow for the timing to be moderated by what is reasonable and practicable in the employer’s business.

If this is the case for your business, take note: the greater the departure from the timing of the breaks from a mid-point, the greater the need for justification to show that it was not reasonable and practicable to take the break at, or closer to, the times set in the Act. The provision does not allow for an employer to unilaterally set break times without consultation or without sufficient justification.

Another common question that we’ve regularly encountered is whether or not the rest and meal breaks can be bundled together (i.e. for a 7.5 hour work period, the employee is entitled to two paid 10-minute rest breaks, and one unpaid 30 minute meal break, but instead the employee requests a 50-minute break during the work period). So long as there is agreement, this appears to be permitted by the legislation.

How do employers demonstrate compliance with these changes?

Where there is agreement, this should be documented. Usually, this would be in the employee’s employment agreement, but could be in a separate agreement, roster or break notebook.

The legislation does not explicitly require that break times be recorded, but we consider that this would be prudent for compliance purposes.

In the worst case scenario, the Act does provide for penalties for employers who do not comply with the new prescriptive regime. If you have not already, we suggest this is an opportune time to update your employment agreements.