Rest and meal breaks: unanswered practical questions

Friday 7 June 2019

Authors: Liz Coats, Tim Clarke and Simon Moore

​​​​​​​The new rest and meal breaks regime came into force on 6 May 2019. The number and duration of an employee's rest and meal breaks are now prescribed under the Employment Relations Act 2000 (ERA) and accrue according to the length of the employee's work period. 

If the employer and employee cannot guarantee the timing of when breaks are to be taken, the default timing under the ERA will apply.

Significantly, the new regime restricts employers' ability to provide compensation instead of rest and meal breaks. Only a very limited group of employers (discussed further below) are exempted from the rest and meal breaks regime. This means that nearly all New Zealand businesses will need to review their practices to ensure they comply with the ERA approach.

We summarise below several practical questions that may arise for New Zealand employers as part of this process.

Employees in sole charge?

Employers who have stores or branches that are run by one employee at a time (or run by two employees, but where one calls in sick) will need to consider how that employee can be provided with their breaks without unduly disrupting their business. For example, the employer might allow the employee to shut down the store to take their break as there will be no other employee available to cover for them.

A rest or meal break must allow the employee freedom not to engage in work activities for the duration of the break, and a meal break must be able to be taken in circumstances in which a meal can be prepared and consumed. However, requiring an employee to stay on site is not on its own sufficient to amount to a work activity.

Employers will therefore need to strike a careful balance if they require an employee to remain on site during a "break". If the employee is effectively still "working" during their allocated break period, then that "break" won't satisfy the employer's legal obligations under the new regime.

Should breaks be recorded?

Many of our employer clients have asked whether they are required to record rest and meal breaks being taken to ensure they can prove compliance. The ERA does not require an employer to specifically record that breaks were taken or the timing of those breaks. Rather, the ERA imposes a duty on the employer to provide employees with rest and meal breaks.

Recording break times may protect an employer in a dispute about whether the employee received their rest and meal break entitlements, but this is not in our view an "essential" requirement.

Which employers are exempt from the new regime?

There are now only limited categories of employers which may be exempt from the requirement to provide rest and meal breaks. An employer must be engaged in protecting national security, or otherwise engaged in an "essential service" (including the supply of water/power/fuel, medical services, air transport, shipping), and the continuity of this service must be critical.

Employers that fit into one of these categories may be exempt from the requirement to provide rest and meal breaks to employees who are "employed in that essential service". Whether an employee is deemed to be employed in the essential service is a question of fact and degree in each particular case.

It is unclear whether the Employment Relations Authority or a Labour Inspector will require an employee to actually carry out essential service duties as a regular part of their work, or whether simply setting these duties out in the employee's job description will be sufficient, in order to fall within this exemption.

The above questions are indicative only

There are many practical questions that will need to be worked through as employers endeavour to apply the new breaks regime to their particular circumstances. The most appropriate way to achieve compliance will be fact-specific, and could be complex (e.g. where there are existing collective agreement provisions that deal with breaks in a manner which is inconsistent with the ERA).

For more information on how to support your business as it addresses these matters, please get in touch with the contacts listed or your usual Bell Gully advisor. ​​


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Liz Coats

    Partner Auckland
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
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  • Employment and workplace safety