FAQs on upcoming changes to rest and meal break entitlements

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 comes into effect on Monday 6 May 2019.

What is the Act asking employers to do?

Prior to 6 May 2019, the law requires that employees receive a reasonable opportunity to take paid
rest and unpaid meal breaks that are of an appropriate duration for the employee’s work period,
without specifying the number, duration and position of the breaks within the work day. From 6 May
2019, the Act 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.
Breaks benefit workplaces by making sure that employees work safely and productively. Employers
must pay for minimum rest breaks but don’t have to pay for minimum meal breaks. Employers and
employees need to agree when to take their breaks. If they cannot agree, the law will require the
breaks to be taken at times as specified in the Act, so long as it’s reasonable and practicable.

What breaks are employees entitled to?

Employees are entitled to breaks based on the number of hours that they work. 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.
The table below sets out the minimum rest and meal breaks an employee is entitled to, based on the
length of an employee’s work period.

When do the breaks need to be taken?

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 timing for breaks.
A take it or leave it approach by an employer is unlikely to be seen as an agreement, rather a
unilateral decision imposed by the employer (which would then raise questions around whether or
not the timing of breaks were provided as specified in the Act, and if not, whether it was reasonable
and practicable for the employer to provide the breaks when they did).
The duty of good faith requires parties to be active and constructive in maintaining a productive
employment relationship. It also requires the parties to be responsive and communicative.
Good faith is a two way street. We would expect parties to use their best endeavours to come up
with a flexible solution that works for them. The parties can agree any flexibility that is required
around the timing of breaks i.e. “that their first 10 minute paid rest break can be taken at the end
point of a service delivery run within the first four hours of the work period”.
Employers would need to consider their health and safety obligations in agreeing to the timing of
breaks (for example, managing the risks that may arise from worker fatigue).
Mediation services are available to help parties try to reach an agreement on when breaks can be
taken.

What happens if the employer and employees cannot reach an agreement?

If the parties cannot agree on when rest and meal breaks should be taken, then the employer should
provide rest and meal breaks as close to the times set in the Act, so far as reasonable and practicable
in the circumstances.
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. However, other factors would need to be considered too – such as the intensity
of the employee’s work prior to a scheduled break. The employer should provide their employees
with their break entitlements at or as close to these set timings, so far as is reasonable and
practicable in the circumstances.
The timing of breaks is based on the length of the employees shift, the table below describes when
each break should be taken, so far as is reasonable and practicable in situations where the parties
have not reached agreement on the timing of breaks.

Ultimately, the timing of breaks is to be provided by the employer. Where the employer has tried in
good faith to reach agreement on breaks, and where it is not reasonable or practicable to provide
breaks at the set times in the Act, then the employer could determine (having weighed up the
relevant considerations, which could include the operational needs of the business and the needs of
the employee, such as the length of time since they have had a break and the intensity of their work)
when the breaks will be taken. Where there is no agreement on 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.

Mediation services are available to help parties come to a solution. It is free and easy to use. You can
request mediation services through the Employment New Zealand website. For help with requesting
mediation you can call the Employment New Zealand contact centre on 0800 20 90 20.
What are the legislative exceptions?

If an employee has to take a specific break under legislation, that legislation applies instead of any
break entitlement under the Employment Relations Act.
For example, the Land Transport Rule: Work Time and Logbooks 2007 made under the Land
Transport Act 1998.

Which employers are exempt from the rest and meal breaks specified in the Act?

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:

Where the exemption applies, an employer and employee can agree to breaks being taken in a
different manner (including the number and timing of breaks) than the set breaks.

What happens if you’re an exempt employer and can’t reach an agreement?

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 (for example
allowing a later start time or an earlier finish time, or an accumulation of time off work);
or
• financial compensation; or
• both time off work at an alternative time and financial compensation.
If the compensation is time off work at an alternative time, this must be equivalent to and provided
on the same basis as the break entitlement the employee would have otherwise received.
If the compensation is financial compensation this 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.
Compensation could also include a mixture of time off work and financial compensation, as long as
the compensation together is equivalent to the entitlement the employee would have otherwise
received.

What should I do if my employer does not allow me to take rest and lunch breaks?

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. Union members can seek help from their union. If they fail to agree, they can
contact us for mediation.

The Employment Relations Authority can determine the matter if mediation fails.
For serious breaches the Labour Inspectorate would likely seek penalties.