Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008

Part 2
Amendments to principal Act

6 New Parts 6C and 6D inserted
  • The following Parts are inserted after Part 6B:

    Part 6C
    Breastfeeding facilities and breaks

    69X Interpretation
    • In this Part, unless the context otherwise requires,—

      breastfeeding includes expressing breast milk

      work period has the same meaning as in section 69ZC.

    69Y Employer's obligation
    • (1) An employer must ensure that, so far as is reasonable and practicable in the circumstances,—

      • (a) appropriate facilities are provided in the workplace for an employee who is breastfeeding and who wishes to breastfeed in the workplace; and

      • (b) appropriate breaks are provided to an employee who is breastfeeding and wishes to breastfeed during a work period.

      (2) For the purpose of subsection (1)(b), the breaks are paid only if the employee and employer agree that they are paid.

      (3) In subsection (1), circumstances includes—

      • (a) the employer's operational environment; and

      • (b) the employer's resources.

    69Z Breastfeeding breaks additional to breaks under Part 6D
    • (1) Breastfeeding breaks provided under this Part are in addition to breaks an employee is entitled to under Part 6D.

      (2) However, if an employee and employer agree, the same break may be taken for the purposes of this Part and Part 6D.

      (3) To avoid doubt, a break taken for the purposes of this Part and Part 6D is a paid break to the same extent as it would be if taken separately under Part 6D.

    69ZA Code of employment practice relating to employer's obligation
    • As soon as practicable after the commencement of this Part, the Minister must approve, under section 100A, a code of employment practice relating to an employer's obligation under section 69Y.

    69ZB Penalty
    • An employer who does not comply with section 69Y is liable to a penalty imposed by the Authority.

    Part 6D
    Rest breaks and meal breaks

    69ZC Interpretation
    • In this Part, unless the context otherwise requires, work period

      • (a) means the period—

        • (i) beginning with the time when, in accordance with an employee's terms and conditions of employment, an employee starts work; and

        • (ii) ending with the time when, in accordance with an employee's terms and conditions of employment, an employee finishes work; and

      • (b) to avoid doubt, includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a).

    69ZD Entitlement to rest breaks and meal breaks
    • (1) An employee is entitled to, and the employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.

      (2) If an employee's work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break.

      (3) If an employee's work period is more than 4 hours but not more than 6 hours, the employee is entitled to—

      • (a) one 10-minute paid rest break; and

      • (b) one 30-minute meal break.

      (4) If an employee's work period is more than 6 hours but not more than 8 hours, the employee is entitled to—

      • (a) two 10-minute paid rest breaks; and

      • (b) one 30-minute meal break.

      (5) If an employee's work period is more than 8 hours, the employee is entitled to—

      • (a) the same breaks as specified in subsection (4); and

      • (b) the breaks as specified in subsections (2) and (3) as if the employee's work period had started at the end of the eighth hour.

    69ZE When employer to provide rest breaks and meal breaks
    • (1) Rest breaks and meal breaks are to be observed during an employee's work period—

      • (a) at the times agreed between the employee and his or her employer; but

      • (b) in the absence of such an agreement, as specified in subsections (2) to (5).

      (2) Where section 69ZD(2) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest break in the middle of the work period.

      (3) Where section 69ZD(3) applies, an employer must, so far as is reasonable and practicable, provide the employee with—

      • (a) the rest break one-third of the way through the work period; and

      • (b) the meal break two-thirds of the way through the work period.

      (4) Where section 69ZD(4) applies, an employer must, so far as is reasonable and practicable, provide the employee with—

      • (a) the meal break in the middle of the work period; and

      • (b) a rest break halfway between—

        • (i) the start of work and the meal break; and

        • (ii) the meal break and the finish of work.

      (5) Where section 69ZD(5) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest breaks and meal breaks in accordance with the applicable provision in subsections (2) to (4).

    69ZF Penalty
    • An employer who does not comply with sections 69ZD and 69ZE is liable to a penalty imposed by the Authority.

    69ZG Relationship between Part and employment agreements
    • (1) This Part does not prevent an employer providing an employee with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.

      (2) An employment agreement that excludes, restricts, or reduces an employee's entitlements under section 69ZD—

      • (a) has no effect to the extent that it does so; but

      • (b) is not an illegal contract under the Illegal Contracts Act 1970.

    69ZH Relationship between Part and other enactments
    • (1) Where an employee is provided with, or entitled to, rest breaks or meal breaks under another enactment,—

      • (a) this Part prevails if the breaks provided under this Part are additional or enhanced breaks:

      • (b) the other enactment prevails if the breaks provided under the other enactment are additional or enhanced breaks.

      (2) Despite subsection (1), where an employee is a person who is required to take a rest break by, or under, another enactment, the requirement for a rest break defined by, or under, the other enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.