As of 6 May 2019, rest and meal breaks are to be more prescriptive. These are to be agreed between the employer and the employee. Where these rest and meal breaks cannot be agreed then the breaks will be in the middle of the work period (so long as it is reasonable and practical to do so).
The number and duration of rest and meal breaks depend on the length of the work period. Here is a helpful guide:
Between 2 hours and 4 hours One 10-minute paid rest break
Between 4 hours and 6 hours One 10-minute paid rest break and one 30- minute unpaid meal break
Between 6 hours and 8 hours Two 10-minute paid rest breaks and one 30- minute unpaid meal break
Over 8 hours Entitled to breaks as if the work period has started again; e.g. if they work more than 2 hours but not more than 4 hours on top of the 8 hours already worked (a twelve-hour shift), they get another 10-minute paid rest break
A work period is defined as the period beginning with the time the employee starts work (in accordance with their employment agreement) and ending with the time at which they finish work (in accordance with their employment agreement). It also includes the time where they are on an authorised break.
There are some exemptions: Some employers will be exempt from the requirement to provide rest and meal breaks as above if:
- Those engaged in the protection of NZ’s national security
- The employer is engaged in providing an essential service where continuity of service is critical to the public interest, including those services which affect public safety,
- Where the continuity of service is critical to NZ’s national security
- Where the employer would incur unreasonable costs in replacing the employee during the rest and meal breaks.
If an employer is exempt, they may agree with the employee that breaks are to be taken in a different manner. If they are unable to reach an agreement an employee is entitled to compensatory measures; for example, time off work at an alternative time during the work period and/or financial compensation.
What this means for employers:
The impact of this legislation will affect smaller business with just a few employees, to a greater degree. Cafe’s and sole operators in retail, will need to plan carefully as the burden is on the employer to ensure that the employee is able to take their rest and meal breaks.
Employers may need to adjust the way they currently work to allow for rest and meal breaks to be taken at specific times. There will likely be a settling in period in relation to getting things right, but long-term non-compliance may leave you open to the risks of personal grievance or disadvantage claims.
Employment agreement rest and meal break clauses should be checked and may need to be amended to be compliant. This may require a variation to agreement to be issued to any current employees. If you require a “Variation to Terms of Employment Letter” for this purpose click here