Give me a break!
By: Amanda Douglas
Published: 26/07/2019
On 6 May 2019, changes to the Employment Relations Act 2000 came into force that change how employers should deal with rest and meal breaks.

Previously, the employer only had to provide “reasonable opportunity” for rest and meal breaks, and the timing of the breaks had to be “reasonable”.  “Reasonable and necessary” restrictions were allowed on when and how long the rest and meal breaks were.  The employer could avoid the need to provide breaks if they provided “reasonable compensatory measures” to the employee, such as time in lieu.

However, as of 6 May 2019, both the length and timing of minimum break entitlements are prescribed as follows:
 
Total work period Break entitlement
2–4 hrs 10-minute rest break
4–6 hrs 1 x 10-minute rest break
1 x 30-minute meal break
6–8 hrs 2 x 10-minute rest breaks
1 x 30-minute meal break
> 8 hrs Each additional period worked entitles the employee to further breaks as if that period was a new work period. E.g. an additional 4 hours means another 10-minute rest break and 30-minute meal break
 
The length and number of breaks are minimum entitlements and cannot be avoided by agreement.

In terms of timing, the Act now requires that each break must be spread evenly throughout the employee’s shift.  In the absence of an agreement with the employee as to timing, this default ‘even spread’ for timing of breaks will apply.  For example, for an 8-hour shift starting at 8.30am, the breaks must be timed as follows:
 
Start time:         8.30am
Rest break:       10.30–10.40am
Meal break:       12.30–1.00pm
Rest break:       3.00–3.10pm
End time:          5.00pm

The default break times from the Act will apply, unless you reach agreement with the employee – which will need to be recorded in the employment agreement.  Therefore, we recommend that employers reach agreement as to timing as that will provide flexibility and more likely meet operational needs.  We find that the above timings are quite restrictive for many employers and do not work at all for others.

Therefore, changes to your employment agreements may be required.  This may include:
  • setting out actual break times that need to apply for your business; or
  • rostering when breaks are to occur; or
  • other changes to create flexibility as to break timing.
If there are other legislative requirements for timing of rest and meal breaks, that apply to employees, such as the Land Transport Act work-time rules, these will also need to be accommodated.  The Act specifically provides how these breaks are to be worked together.  In many cases, for example, the work time rules can be worked so that they coincide with the Employment Relations Act break entitlements and timing.

Please contact the Wynn Williams employment team if you have any concerns about how this legislation may impact on you or your business, or would like assistance to amend your employment agreements.
 
 
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