Employment Relations Amendment Act 2018

  • Corrections have been made to section 2(a)(v) and the Schedule on 13 December 2018 under section 25(1)(j)(iii) & (v) of the Legislation Act 2012.

Amendments to Part 6D (rest breaks and meal breaks)

43 Sections 69ZC to 69ZEB replaced

Replace sections 69ZC to 69ZEB with:

69ZC Interpretation

In this Part, unless the context otherwise requires, work period

(a)

means the period—

(i)

beginning with the time at which, in accordance with an employee’s terms and conditions of employment, an employee starts work; and

(ii)

ending with the time at which, in accordance with an employee’s terms and conditions of employment, an employee finishes work; and

(b)

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 Employee’s entitlement to, and employer’s duty to provide, rest breaks and meal breaks
Entitlement and duty

(1)

An employee is entitled to, and the employee’s employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.

Work period between 2 hours and 4 hours

(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.

Work period between 4 hours and 6 hours

(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.

Work period between 6 hours and 8 hours

(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.

Work period over 8 hours

(5)

If an employee’s work period is more than 8 hours, the employee is entitled to the rest breaks and meal breaks in accordance with subsections (6) and (7).

(6)

During the work period of 8 hours, the employee is entitled to—

(a)

two 10-minute paid rest breaks; and

(b)

one 30-minute meal break.

(7)

During the work period beyond 8 hours (the subsequent period), the employee is entitled to the following:

(a)

if the subsequent period is 2 hours or more but not more than 4 hours, to one 10-minute paid rest break:

(b)

if the subsequent period is more than 4 hours but not more than 6 hours, to—

(i)

one 10-minute paid rest break; and

(ii)

one 30-minute meal break:

(c)

if the subsequent period is more than 6 hours but not more than 8 hours, to—

(i)

two 10-minute paid rest breaks; and

(ii)

one 30-minute meal break.

69ZE Timing of rest breaks and meal breaks
Timing of breaks as agreed

(1)

If an employee and employer have agreed on the times at which the employee is to take rest breaks and meal breaks during the employee’s work period, the rest breaks and meal breaks are to be taken at those times.

Timing of breaks in absence of agreement

(2)

In the absence of an agreement, the rest breaks and meal breaks are to be taken in accordance with the applicable provision in subsections (3) to (7).

Work period between 2 hours and 4 hours

(3)

If 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.

Work period between 4 hours and 6 hours

(4)

If 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.

Work period between 6 hours and 8 hours

(5)

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

(a)

a rest break halfway between the start of work and the meal break; and

(b)

the meal break in the middle of the work period; and

(c)

a rest break halfway between the meal break and the finish of the work period.

Work period over 8 hours

(6)

If section 69ZD(5) and (6) apply, an employer must, so far as is reasonable and practicable, provide the employee with—

(a)

a rest break halfway between the start of work and the meal break; and

(b)

the meal break in the middle of the work period; and

(c)

a rest break halfway between the meal break and the finish of the work period.

(7)

If section 69ZD(5) and (7) apply, an employer must, so far as is reasonable and practicable, provide the employee with the breaks as follows:

(a)

if the subsequent period is 2 hours or more but not more than 4 hours, the rest break in the middle of the subsequent period:

(b)

if the subsequent period is more than 4 hours but not more than 6 hours,—

(i)

the rest break one-third of the way through the subsequent period; and

(ii)

the meal break two-thirds of the way through the subsequent period:

(c)

if the subsequent period is more than 6 hours but not more than 8 hours,—

(i)

a rest break halfway between the start of the subsequent period and the meal break; and

(ii)

the meal break in the middle of the subsequent period; and

(iii)

a rest break halfway between the meal break and the finish of the subsequent period.

69ZEA Exemption from requirement to provide rest breaks and meal breaks

(1)

An employer is exempt from the requirement to provide rest breaks and meal breaks in accordance with section 69ZD(1) if subsection (2) or (3) applies.

(2)

This subsection applies if—

(a)

the employer is engaged in the protection of New Zealand’s national security; and

(b)

continuity of service is critical to New Zealand’s national security; and

(c)

the employer would incur unreasonable costs in replacing an employee, employed in the protection of New Zealand’s national security, during the rest breaks and meal breaks—

(i)

with another person who has sufficient skills and experience; and

(ii)

without compromising New Zealand’s national security.

(3)

This subsection applies if—

(a)

the employer is engaged in an essential service; and

(b)

continuity of service or production in the essential service is critical to the public interest, including (without limitation) services affecting public safety; and

(c)

the employer would incur unreasonable costs in replacing an employee, employed in the essential service, during the rest breaks and meal breaks—

(i)

with another person who has sufficient skills and experience; and

(ii)

without compromising public safety.

(4)

If subsection (2) or (3) applies, the employer and employee may agree that any rest breaks and meal breaks are to be taken in a different manner (including the number and timing of breaks) than specified in this Part.

69ZEB Compensatory measures

(1)

If the employer and employee are unable to reach agreement under section 69ZEA(4), an employee is entitled to, and the employee’s employer must provide the employee with, compensatory measures.

(2)

In this section, compensatory measure

(a)

means a measure that is reasonable and designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1); and

(b)

may include (without limitation)—

(i)

a measure that provides the employee with time off work at an alternative time during the employee’s work period (for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions); or

(ii)

financial compensation; or

(iii)

both time off work at an alternative time and financial compensation.

(3)

For the purposes of subsection (2),—

(a)

if the compensatory measure provided is time off work at an alternative time,—

(i)

the employee must be provided with at least an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and

(ii)

the time off work at an alternative time must be provided on the same basis as the rest break or meal break that the employee would otherwise have taken:

(b)

if the compensatory measure provided is financial compensation, that financial compensation, at a minimum, must relate to the amount of time that the employee was required to work but would otherwise have taken as a rest break or meal break, and must,—

(i)

in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or

(ii)

in the case of any other employee, be calculated at the employee’s ordinary rate of pay:

(c)

if the compensatory measure includes both time off work at an alternative time and financial compensation, the total amount of alternative time plus time for which payment is made must be at least equivalent to the amount of time that the employee would otherwise have taken as a rest break or meal break.

(4)

For the purposes of subsection (3)(c), any financial compensation must,—

(a)

in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or

(b)

in the case of any other employee, be calculated at the employee’s ordinary rate of pay.