Changes to Rest and Meal Breaks

The final reading of the Employment Relations Amendment Bill is occurring as we go to print. The government did not have the numbers in the last term to make the legislation changes with United Future and the Maori Party opposing the reforms. No such problem this time around.

Rights relating to ‘breaks’ will likely have the greatest impact on the largest number of employers. The changes will give greater flexibility for providing breaks, moving away from the current prescriptive nature of the legislation.

There will also no longer be an absolute requirement to provide rest and meal breaks under certain circumstances. This may include emergency situations or in sole charge circumstances where the employee is still required to be aware of their responsibilities during their break, and may perform their duties if required to. The changes enable the employer and the employee to negotiate when rest and meal breaks are to be taken and for how long. If agreement isn’t reached, the employer will be able to set down the times, but they must be reasonable.

However an employer’s health and safety obligations remain, and therefore it is imperative this is taken into account when considering breaks. The legislation also makes it necessary to compensate an employee who doesn’t have a break. Compensation may include starting late or finishing work early, or accumulating the break times and taking them together. This will be particularly helpful for work places that may work through breaks during the week, and everyone knocks off early on Friday afternoon.

There are additional twists and turns to the changes including providing an opportunity for employees to negotiate breaks. Good faith obligations remain and our advice is to ensure any agreements reached are clearly recorded in writing and signed by both parties. Check what is currently in your Employment Agreements.

The second area of change that will have the most impact on the majority of workplaces is the flexible working arrangements. Currently, after six months employment, employees with responsibilities for the care of others have the right to request flexible working arrangements. For example this may be a request for less hours per day, working from home, or a shorter working week. Currently the employee can only make one request every 12 months and the employer is required to consider the request in good faith.

The Bill will extend this right to make a request to all employees irrespective of the reason, from their first day of employment, and they can make as many requests as they want. There are limited specified grounds that an employer can refuse such a request. In view of the recent Human Rights Tribunal decision which saw an employer having to pay an employee $40,000 for requiring the employee to continue to work Saturdays, this legislative change is concerning.

The remaining changes are primarily about collective negotiations with unions. According to the Companies Office annual union membership report, union membership accounted for only 15.7% of the total labour force as at 1 March 2014. As such, although there are changes that will have implications for unions, these are not the issues that concern the majority of employers. In next month’s Newsletter we will analysis the impact specifically for employers with union membership. 

As with all legislation amendments, case law will be instrumental in interpreting what the changes mean in practice. Hopefully the very prescriptive and narrow interpretation the Employment Relations Authority and Employment Court are placing on 90 day trial periods will not be extended to these changes.