New Paid Break Rules - So much misinformation!
The new rules around Paid and Unpaid Breaks came into effect on the 6th of May and it seems to be causing a lot of confusion.
This blog post has received a lot of traction with questions from both employees and employers.
It is scary some of the assumptions people are making. The best one I have had was the assertion that new rules don't apply to Dentists as they have special rules?!?!
If you are not sure check out this new blog post where we set out the rules in detail.
Original Blog Post is below:
Management of Rest and Meal Breaks will change under the Employment Relations Amendment Act 2018 [Updated see bold text]
The Employment Relations Amendment Act 2018, which comes into effect on May 6th, will impact the way you manage Rest and Meal breaks for staff.
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.
Questions we would ask:
How will this be enforced
What will employers be expected to do to demonstrate compliance?
What records will they need to keep
If an employee is to accrue the “break time” to be taken off at a later date how will this be tracked and how will the applicable rate be stored in a payroll system where staff work on variable rates.
The changes to the rest and meal break provisions in the Employment Relations Act (the ER Act) are described as “seeking to balance the importance of rest and meal breaks with the need for breaks to be practical for each workplace”.
Is the application of this practical for the employers?
We would recommend that you review the wording of your Employment Agreements and ensure that you will be able to manage this effectively.
The changes replace the current rules with a more general right for employees to have rest and meal breaks to give them a reasonable opportunity to rest, eat, drink and deal with personal matters.
The new provisions encourage employers and employees to negotiate, in good faith, rest and meal breaks that meet the legislation, without compromising business continuity and flexibility.
The changes specify:
when employers can make reasonable restrictions on rest and meal breaks
employers can specify when breaks are taken, if employees and employers cannot agree on when and how long breaks should be then specific rules related to timing are set out in the bill. 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.
that an employer is exempt from giving breaks – when employees agree to reasonable compensation or where the employer cannot reasonably give the employee rest and meal breaks.
that reasonable compensatory measures are to be provided when an employer is exempt from the requirements to provide breaks
while it may be possible for an employer and employee to agree to change when the breaks happen, they cannot agree to a shorter break length
rest breaks must be paid
any other law that requires an employee to take rest and meal breaks takes priority over the rules in the Act.
Employees and employers can’t contract out of the right to rest and meal breaks - an employment agreement that required an employee to take no breaks, and did not provide compensatory measures, would exclude an employee’s entitlements and therefore have no effect.
In other words, an employee either gets a break or a compensatory measure; the employer cannot fail to give either.
One of the big questions we had was around what record keeping would be required in order for an employer to be able to show that they have given their employees breaks and that these breaks have been taken. So we asked MBIE what is expected and what will happen if the employer does not track the breaks. While the answer was a bit (a lot) vague it will give you an insight into their thinking:
"There is nothing in the legislation that requires that the rest and meal break times be recorded. An employer may want to record the rest and meal break times if they are concerned about being able to prove they have been giving breaks, but there is no requirement to do so. The legislation is quiet on the process of how this could be included. Current records are the Wage and Time Record, and the Leave and Holiday Record, as far as we are aware here at Employment New Zealand, the new Amendment Bill also does not include this as a requirement.
As discussed, as this is not current legislation, it is unlikely that the Labour Inspectorate would ask for such records, but if there are disputes about the length of breaks, or break disputes, then the record would help if these situations arose"
Does this help? Not really. Our advice would be to track the breaks if you can as this will at least protect you. Alternatively you could make it a policy that staff take breaks (and specify how/when in your employee agreement) and then make it a policy that they advise you when they HAVE NOT taken a break. This may reduce the amount of information you are recording.
If an employee thinks they are not being allowed to have the breaks they are entitled to, they should first raise the matter with their employer.
If this doesn’t fix the problem, they can contact us or can seek mediation assistance. If employees are union members, they can seek assistance from their union.
The Employment Relations Authority can order employers to comply and impose a penalty if they don’t provide appropriate breaks or reasonable compensation.
How will you handle yet another change in the law related to employing staff?