Meal and rest breaks

by The Findlaw Team

Until relatively recently (2009), there were no general requirements for meal and rest breaks under New Zealand law, although there have been (and still are) specific requirements, eg for truck and bus drivers, for many years.

On 1 April 2009, the government changed the Employment Relations Act 2000 to include legal requirements for rest breaks and meal breaks for all employees. These requirements give the minimum number of, and timing for, breaks depending on how many hours an employee has been working.

The actual timing of the breaks is up to the employer and employee to agree, however if there in no agreement then the Act stipulates when the breaks must be taken.

Employers and employees may agree to enhanced or additional entitlements to rest and meal breaks (ie longer breaks and/or paid meal breaks), but any agreement that excludes, restricts or reduces the number and lengths of breaks that the employee is entitled to will have no effect (ie the employee remains entitled to the breaks).

Number of breaks

Under section 69ZD of the Employment Relations Act 2000, employees are entitled to:

  • One 10-minute paid rest break during a work period of between 2 hours and 4 hours;
  • One 10-minute paid rest break and one 30-minute meal break (unpaid unless agreed otherwise) during a work period of between 4 hours and 6 hours;
  • Two 10-minute paid rest breaks and one 30-minute meal break (unpaid unless agreed otherwise) during a work period of between 6 hours and 8 hours; and
  • If an employee works for a period of more than 8 hours, the requirements apply as if their work period had started again at the end of the eighth hour. 


Timing of breaks

The rest and meal breaks must be observed at the times agreed between the employer and employee. However, if there is no such agreement, the timing of the breaks must be as follows, so far as is reasonable and practicable:

  • Where the work period is between 2 hours and 4 hours, the rest break must be in the middle of the work period;
  • Where the work period is between 4 hours and 6 hours, the rest break must be provided one-third of the way through the work period and the meal break two-thirds of the way through the work period; and
  • Where the work period is between 6 hours and 8 hours, the meal break must be provided in the middle of the work period, and the rest breaks halfway between the start of work and the meal break and the meal break and the finish of work.


Changes on the horizon

The Government is planning to make changes to the meal and rest break provisions in the Employment Relations Act 2000, possibly before the end of 2013. The proposed changes would:

  • Require employers to either provide meal breaks and paid rest breaks or “compensatory measures”;
  • Encourage employers and employees to agree in good faith on rest break and meal break arrangements; and
  • Ease the requirements so that there is more flexibility in what is considered to constitute a break.
     

Case example: Being “tied to workstation” does not amount to a break

Kingi v Bay of Plenty District Health Board (2012) was a claim taken by Kingi and eight others who were employed as telephonists on eight-hour evening and night shifts at a hospital. They claimed that they were not provided with a meal or rest break in accordance with sections 69ZD and 69ZE of the Employment Relations Act 2000.

Under the collective agreement, where an employee was unable to be relieved from work for a meal break, they were allowed to take a meal on duty, and this period was regarded as working time. The employer claimed that taking rest and meal breaks at the workstation was permissible under the Act.

The Employment Relations Authority observed there were constraints on Kingi and the others' ability to take breaks other than at their workstation, including:

  • The unavailability of staff (trained or otherwise) to cover for them while they took breaks;
  • The unsuitability of the telephony areas for eating and drinking; and
  • The distance of the telephony areas from more suitable areas in which to have a meal or refreshment, particularly given the need for time to hear and respond to incoming calls.

The Authority said this meant that Kingi and the others were tied to their workstation, and forced into the unsatisfactory position of eating and drinking at the workstation when they could. It determined that this did not amount to a break. Even if, for example, there was no call on their services for an extended period of up to an hour, and during this time it was possible to eat a meal at the workstation, the telephonists would remain constantly on duty in the sense that they would need to be ready to respond to a call which could be made at any time. There was nothing to relieve them of the obligation to take the call and no stoppage of work amounting to a break from work.

The Authority concluded the employer did not comply with the rest and meal break provisions in section 69ZD(4) of the Act. It ordered the employer to pay a penalty of $3,000 to each of the claimants (totalling $27,000).



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