Global Compliance Desk – New Zealand

Changes to Rest and Meal Break Entitlement

The Employment Relations Amendment Act 2018 (the Act) introduces several employment law changes that aim to improve fairness in the workplace and deliver decent work conditions and fair wages. Below is some information on what the change to rest and meal break entitlements means for employees and employers when the Act came into effect on May 6, 2019.

Earlier the law required that employees receive a reasonable opportunity to take paid rest and unpaid meal breaks that are of appropriate duration for the employee’s work period, without specifying the number, duration, and position of the breaks within the workday.

The change in the entitlement requires that employees have set rest and meal breaks so that they have time to rest, refresh and attend to personal matters. The number and duration of breaks will depend on the hours worked. For more information on the amendment to rest and meal break please see the FAQ by the Ministry of Business, Innovation, and Employment.

The Act provides an exemption from the set rest and meal break entitlements in certain circumstances for essential services or employers that engage in New Zealand’s national security. You can find more on the exemption below.

Requirement of Breaks

The employer and employee can agree when the rest and meal breaks are to be taken. Both employers and employees have an obligation to act in good faith when negotiating the timing for breaks. When determining the type of breaks to be provided and the duration and timing of the breaks, employers should take into account the length of an employee’s shift.

Employers would need to consider their health and safety obligations in agreeing to the timing of breaks.

What happens if an employer and employee cannot reach an agreement?

• Mediation services are available to help parties try to reach an agreement on when breaks can be taken.
• Businesses can provide breaks at different times if it’s not reasonable and practicable at the times set in law. This is intended to account for individual circumstances across different workplaces. The need to maintain business continuity or production could be a valid reason for an employer to vary the timing of breaks.
• Where there is no agreement on the timing of breaks then the further away the timing of the breaks are from the timing set in the Act, the greater the justification the employer will need to have for why it was not reasonable and practicable to take the break at or closer to the times set in the Act.

What are the legislative exceptions?

If an employee has to take a specific break under the legislation, that legislation applies instead of any break entitlement under the Employment Relations Act.

Exempt Employers

The Act provides an exemption from providing set rest breaks and meal breaks in certain circumstances for essential services or employers that engage in New Zealand’s national security. The exemption applies in the following two situations if all the conditions are met:

• If the employer is engaged in an essential service (a service specified in Schedule 1 of the Employment Relations Act 2000) and continuity of service or production in the essential service is critical to the public interest; including (without limitation) services affecting public safety, or;
• If the employer is engaged in the protection of New Zealand’s national security; and continuity of service is critical to New Zealand’s national security.

If an exempt employer and an employee cannot agree to alternative breaks, the employee is entitled to compensation. The compensation must be reasonable and designed to compensate for the failure to provide set breaks. This may include:

• Time off work at an alternative time during the employee’s work period, which must be equivalent to and provided on the same basis as the break entitlement the employee would have otherwise received; or
• Financial compensation which must be calculated at the employee’s ordinary rate of pay, or for an employee on variable rates (such as being paid a piece rate), the rate must be the employee’s average rate of pay in the relevant work period; or
• Both time off work at an alternative time and financial compensation as long as the compensation together is equivalent to the entitlement the employee would have otherwise received.

Employees should talk to their employer first if they believe they are not allowed their entitled breaks. The Labour Inspectorate expects employers and employees to work out how and when to take applicable breaks. For serious breaches the Labour Inspectorate would likely seek penalties.