Last week details of The Employment Relations Amendment Bill were released as part of the new governments first 100 Days programme.
The bills introductory note states:
The purpose of this Bill is to implement the Government’s post-election commitments to restore key minimum standards and protections for employees, and a suite of changes to promote and strengthen collective bargaining and union rights in the workplace. The changes are intended to introduce greater fairness in the workplace between employees and employers, in order to promote productive employment relationships.
This announcement created much media attention and commentary as it included apparent changes to the 90 Trial rules introduced by the previous government. In the end, it turns out that not a lot has changed to the bulk of employers as employers with fewer than 19 staff can still operate pretty much as they have.
One of the other changes which caught my eye and got a mention in passing but not much focus was the:
"reinstating the right to prescribed rest and meal breaks, with limited exceptions"
So why did this seemingly innocuous change get my attention when we all know that employees are entitled to breaks? Well, there are two main reasons:
This change is likely to result in the reintroduction of the prescriptive regime of the past (one National was trying to eliminate) – The "10 minutes break after two hours etc" While employees are currently allowed these breaks there is flexibility around how this is handled. Now this will be prescribed as follows.
69ZD Employee’s entitlement to, and employer’s duty to provide, rest breaks and meal breaks
Entitlement and duty
(1) An employee is entitled to, and the employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.
Work period between 2 hours and 4 hours
(2) If an employee’s work period is at least 2 hours and no more than 4 hours, the employee is entitled to one 10-minute paid rest break.
Work period between 4 hours and 6 hours
(3) If an employee’s work period is at least 4 hours and no more than 6 hours, the employee is entitled to—
(a) one 10-minute paid rest break; and
(b) one 30-minute meal break.
Work period between 6 hours and 8 hours
(4) If an employee’s work period is at least 6 hours and no more than 8 hours, the employee is entitled to—
(a) two 10-minute paid rest breaks; and
(b) one 30-minute meal break.
Again I have no issue with this as this is how most employers would operate.
What got my attention was the fact that in addition to this, employers and employees will have to agree when these breaks will be taken and if they don't have a formal agreement on the timing of the breaks then the Act prescribes how this will be handled, including the requirement to compensate an employee if they do not take their break?
69ZE Timing of rest breaks and meal breaks
Timing of breaks as agreed
(1) If an employee and employer have agreed on the times at which the employee is to take rest breaks and meal breaks during the employee’s work period, the rest breaks and meal breaks are to be taken at those times.
Timing of breaks in absence of agreement
(2)In the absence of an agreement, the rest breaks and meal breaks are to be taken in accordance with the applicable provision in subsections (3) to (7).
Work period between 2 hours and 4 hours
(3)If section 69ZD(2) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest break in the middle of the work period.
Work period between 4 hours and 6 hours
(4)If section 69ZD(3) applies, an employer must, so far as is reasonable and practicable, provide the employee with—
(a) the rest break one-third of the way through the work period; and
(b) the meal break two-thirds of the way through the work period.
Work period between 6 hours and 8 hours
(5) If section 69ZD(4) applies, an employer must, so far as is reasonable and practicable, provide the employee with—(a) a rest break halfway between the start of work and the meal break; and
(b) the meal break in the middle of the work period; and
(c) a rest break halfway between the meal break and the finish of the work period.
Etc
The next section describes the "compensation" an employee must be provided if they do not receive a break:
69ZEB Compensatory measures
(1) If the employer and employee are unable to reach agreement under section 69ZEA(2), an employee is entitled to, and the employee’s employer must provide the employee with, compensatory measures.
(2) In this section, compensatory measure—
(a) means a measure that is reasonable and designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1); and
(b) may include (without limitation)—
(i) a measure that provides the employee with time off work at an alternative time during the employee’s work period (for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions); or
(ii) financial compensation; or
(iii) both time off work at an alternative time and financial compensation.
(3) For the purposes of subsection (2),—
(a) if the compensatory measure provided is time off work at an alternative time,—
(i) the employee must be provided with at least an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and
(ii) the time off work at an alternative time must be provided on the same basis as the rest break or meal break that the employee would otherwise have taken:
(b) if the compensatory measure provided is financial compensation, that financial compensation must be at least an amount that is equivalent to the amount that the employee would have earned during the time that the employee would otherwise have taken as a rest break or meal break:
(c) if the compensatory measure includes both time off work at an alternative time and financial compensation, the total amount of alternative time plus time for which payment is made must be at least equivalent to the amount of time that the employee would otherwise have taken as a rest break or meal break.
I think the key for employers is to:
Ensure you check your employment agreement to make sure it is explicit regarding when and how breaks are to be taken. If your employment agreement is silent on the matter of breaks then you will be bound by the specified timing of breaks in the Act and this may not be practical for your particular business.
Ensure your staff take their breaks and ensure that managers and supervisors keep an eye on this. If your staff do not take the breaks as prescribed by your employment agreement or the default breaks times as prescribed in the case there is no agreement then you could open yourself up to an employee/s making a claim for time and/or financial compensation.
Note: I am in no way offering legal advice in this post. I am merely making employers aware of their obligations. If there is any aspect of The Employment Relations Amendment Bill that you are not sure about I would recommend that you consult an employment lawyer or you local Employers Association and not Bob over the back fence.
The key thing to remember is - Ignorance is no defence.
If you would like to read the full bill you can do that here:
http://legislation.govt.nz/bill/government/2018/0013/latest/LMS8116.html?src=qs
