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  • 8 Dec 2018
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How will changes to how Rest and Meal Breaks are managed impact the way you manage employee attendance

Management of Rest and Meal Breaks will change under the Employment Relations Amendment Act 2018

The Employment Relations Amendment Act 2018, which was passed this week, 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

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.

Compliance

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.

Further information about law changes to rest and meal break rules we have included links below to commentary and the Bill.

https://www.mbie.govt.nz/info-services/employment-skills/legislation-reviews/amendments-to-the-employment-relations-act-2000/law-changes-to-rest-and-meal-break

http://www.legislation.govt.nz/bill/government/2018/0013/19.0/LMS8196.html?search=sw_096be8ed817c0b89_breaks_25_se&p=1&sr=4