On and from 6 May 2019, changes to the Employment Relations Act 2000 (the Act) mean that Employers must now provide rest and meal breaks.
The ability to compensate an employee for not having these breaks has been removed unless you are 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". However, whether an employee is deemed to be employed in the essential service is a question of fact and degree in each particular case.
So, what does this mean for you then?
This means that you must now make provision for your employees to have paid rest breaks and an unpaid meal break of not less than 30 minutes, depending on the number of hours they work in a day. The Act does allow you and your employees to agree when these breaks will be taken. However, if agreement cannot be reached, then the default timings for the breaks, as set out in the Act apply. More on these timings later.
If your business involves stores or branches that are run by one employee at a time (or run by two employees, but where one calls in sick) you will need to consider how that employee can be provided with their breaks without unduly disrupting your business. For example, you 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. You will therefore need to strike a careful balance where you 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 your legal obligations for providing the break.
Our advice is to discuss and agree, wherever practicable, with your employees the timing of their breaks. You should also make it clear that your employees are required to take these breaks and that they are not optional. Making this requirement clear to your employees may help you later defend a claim that you denied an employee the right to take the break.
Statutory Timings for Breaks
Period of Work between 2 to 4 hours: One rest break in the middle of the work period.
Period of Work between 4 to 6 hours: One rest break a third of the way through work period and a meal break two thirds of the way through the work period.
Period of Work between 6 to 8 hours: One meal break mid-way through the work period, plus one rest break mid-way between start of work period and meal break and another rest break mid-way between end of meal break and finish of work period.
Period of Work greater than 8 hours: Same as for work period of up to 8 hours, and then depending on length of additional hours, the above break timings recommence again.
If you require any advice or support in updating your Individual Employment Agreements to reflect this change to Rest and Meal Breaks contact Tony today.