Businesses can be excused for wondering which rules are gone and which rules remain, when it comes to the revolving laws that regulate meal and rest breaks, over the last 3 years.
Before March 2016, rules around meal and rest breaks were prescriptive: employees were entitled to a set number of breaks for specified durations depending on the number of hours worked.
This was amended in 2016 to allow for more flexibility for workplaces around when employees took their breaks - prescribed number and duration of breaks were removed and the obligation on an employer was instead to provide rest and meal breaks that provided a ‘reasonable opportunity during an employee’s work period for rest, refreshment, and attention to personal matters’, and which were appropriate for the length of time the employee had been at work. Employees still got breaks but the parties could agree when and how long these breaks were.
This flexible arrangement will be changing with effect 6 May 2019; the clock has been turned back and the legislation around work breaks will revert back to pre-2016. Back come the prescriptive breaks with prescriptive times; employers must now offer set meal breaks, with specific rules in terms of payment, length and timing. These provisions will depend on how long the employee is working.
The rules after 6 May mean that some businesses are now unsure about when and how best to deal with breaks in their operation. And is it as simple as following the statute rules or is the Authority further confusing the game with determinations?
The present rules
Since 2015, there has been no prescription around timing and duration for employee rest and meal breaks. Breaks simply must be reasonable and appropriate for the duration of the employee's work period. Timing of breaks and meal breaks are either agreed with, or specified, by the employer.
Employers need not give rest and meal breaks at all, but could compensate a worker for a meal break, by agreement with the employee or if they cannot reasonably provide one.
Richard Wagstaff, president of the New Zealand Council of Trade Unions campaigned against the 2016 National's laws, removing statutory rest and meal breaks, as being unjustified and "exploitative and unfair in effect, diminishing fundamental employment rights". Wagstaff acknowledged that while many employers continued to arrange breaks as per the previous (Labour) law, he claimed National's laws "merely allowed unscrupulous and exploitative employers to take away rest and meal breaks from vulnerable employees."
The new rules
The Labour government has changed the law through the Employment Relations Amendment Act 2018, which passed in December 2018. The most significant change that came into effect on 6th May 2019 is that the obligation to set rest and meal breaks has been restored. If employees and employers cannot agree on when and how long breaks should be, then default specific rules related to timing are set out in the Act. For example, an eight-hour workday must include two 10-minute rest breaks and one 30-minute meal break, while a four-hour workday must include one 10-minute rest break.
Some limited exemptions may apply in specified essential services or national security services (Section 69ZEA) which may still allow for compensation/alternative break options.
Is it as simple as varying old Agreements?
Like all employment matters, employers and employees should negotiate in good faith. If an employee wants to discuss the employer’s break policy and propose an alternative, we recommend that you try to come to a reasonable agreement. In the absence of an agreement, the rest breaks and meal breaks are to be taken in accordance with the new prescriptive provisions in subsections (3) to (7) of the new section 69ZE. Whilst the voice of reason still states “so far as is reasonable and practicable,” the case law coming out of the Authority indicates that what is “reasonable” can affect the practical workings of any employer.
A landmark victory in the employment court last December (1) saw employees win the right for "donning and doffing" of work gear to be excluded from their break times. Unite's Mike Treen successfully argued "You take your gear off and clean it and you can't go to the canteen covered in blood, apron, gumboots with knives around your waste. Getting all that gear on and off takes up break time.”
1. Ovation New Zealand Ltd v The New Zealand Meat Workers and Related Trades Union Inc [2018] NZEmpC 151
The changes that came in, in May, certainly leave employer (and employee) without a lot of flexibility when it comes to breaks. However, it should prevent some employers from taking advantage of the leniency of the current system.
We would finally recommend that you review the wording of your current Employment Agreements and ensure that you are able to manage the changes effectively. I recommend that pre-May 2019 employment agreements be amended to reflect the new rules; employer existing rest and meal break provisions ( or policies) may need to be varied to reflect the new rules. I can provide you with a one page employment agreement variation to do this or you can review your Agreements to be compliant with all the new rules (eg. the Domestic Violence leave which came into effect 1 April 2019.)
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