New Zealand Legislation: Bills
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205—1
This Bill implements government policy to make legislative provision for the promotion and protection of infant feeding through breastfeeding and for rest and meal breaks. The Bill amends the Employment Relations Act 2000 (the Employment Relations Act) to require employers to provide facilities and breaks for employees who wish to breastfeed and to provide employees with rest and meal breaks.
The objective of these amendments is to create minimum standards for a modern workforce in respect of the protection and promotion of infant feeding through breastfeeding and the provision of rest and meal breaks. Further, these amendments support government policy concerning the choices of employees, particularly regarding their work-life balance and caring responsibilities.
This Bill amends the Employment Relations Act to require employers to provide appropriate facilities and breaks for employees who wish to breastfeed (including expressing breast milk), as far as is reasonable and practicable. In determining what is reasonable and practicable, employers will be able to take into account their operational environment and resources. The breaks are unpaid unless the employee and employer agree otherwise.
The breastfeeding breaks are to be provided in addition to the rest and meal breaks described below. Where an employer and employee agree, however, the rest and meal breaks can also be used as breastfeeding breaks.
A code of employment practice must be approved by the Minister as soon as practicable after the commencement of the Bill. The purpose of the code would be to provide employers with guidance on how to fulfil their obligations concerning the provision of breastfeeding breaks and facilities.
Employers may be liable to a penalty imposed by the Employment Relations Authority if they do not comply with these requirements. The maximum penalty will be the amount currently provided in the Employment Relations Act, being $5,000 for individuals and $10,000 for a company or other corporation. The Authority will also have the power to order employers to comply with their obligations.
This Bill amends the Employment Relations Act to require employers to provide employees with paid rest breaks and unpaid meal breaks. Employees will be entitled to:
one 10-minute rest break if they have worked 4 hours or less:
one 10-minute rest break and one 30-minute meal break if they have worked more than 4 hours but not more than 6 hours; and
two 10-minute rest breaks and one 30-minute meal break if they have worked more than 6 hours but not more than 8 hours.
If an employee has worked for more than 8 hours, the requirements above will apply as if their work period had started again at the end of the eighth hour.
Where an employee is entitled to one 10-minute rest break, the employer must provide that in the middle of the work period where reasonable and practicable. Where an employee is entitled to one 10-minute rest break and one 30-minute meal break, the employer must provide the rest break one-third of the way through the work period and the meal break two-thirds of the way through the work period where reasonable and practicable. Where an employee is entitled to two 10-minute rest breaks and one 30-minute meal break, the employer must provide the meal break 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 where reasonable and practicable. Employees and employers, however, may agree to vary the timing of the breaks.
Employers may be liable to a penalty under the Employment Relations Act imposed by the Employment Relations Authority if they do not comply with these requirements. The maximum penalty will be the amount currently provided in the Employment Relations Act, as described above. The Authority will also have the power to order employers to comply with their obligations.
Employers and employees will be able to agree to enhanced or additional entitlements to rest and meal breaks.
The new rest and meal break entitlements will not apply to employees who are covered by other legislative or regulatory provisions for rest and meal breaks, where those other provisions are enhanced or additional to the entitlements in this Bill.
Clause 1 is the Title clause.
Clause 2 is the commencement clause. The Bill is to come into force 6 months after the date on which it receives the Royal assent.
Clause 3 provides that the Bill amends the Employment Relations Act 2000.
Clause 4 states the purpose of the Bill, which is to insert 2 new parts into the Employment Relations Act 2000 to—
require facilities and breaks to be provided for employees who wish to breastfeed in the workplace or during work periods; and
require employees to be provided with rest breaks and meal breaks.
Clause 5 inserts new Parts 6C and 6D.
New Part 6C, comprising new sections 69X to 69ZB, deals with breastfeeding facilities and breaks.
New section 69X contains definitions of breastfeeding and work period.
New section 69Y states an employer's obligation to provide breastfeeding facilities and breaks.
New section 69Z clarifies that breaks under this part are additional to breaks provided under new Part 6D.
New section 69ZA requires the Minister of Labour, as soon as practicable after the commencement of new Part 6C, to approve a code of employment practice relating to an employer's obligation under new section 69Y.
New section 69ZB provides that an employer who does not comply with new section 69Y is liable to a penalty imposed by the Employment Relations Authority.
New Part 6D, comprising new sections 69ZC to 69ZH, deals with rest breaks and meal breaks.
New section 69ZC contains a definition of work period.
New section 69ZD specifies an employee's entitlement to rest breaks and meal breaks according to the duration of an employee's work period.
New section 69ZE specifies when, during an employee's work period, an employer is to provide rest breaks and meal breaks.
New section 69ZF provides that an employer who does not comply with new sections 69ZD and 69ZE is liable to a penalty imposed by the Authority.
New section 69ZG clarifies that new Part 6D does not prevent an employer providing an employee with enhanced or additional rest breaks and meal breaks.
New section 69ZH clarifies that where rest breaks or meal breaks are provided under another enactment, then whether the Part or the other enactment prevails is determined according to which provides additional or enhanced breaks.
Clause 6 amends section 137(1)(a) (which specifies the matters in relation to which the Employment Relations Authority may issue compliance orders) to insert references to new Parts 6C and 6D.
Breastfeeding is critical to providing the best start for infants and important to both infant and maternal health. Evidence suggests, however, that access to breastfeeding breaks and facilities in the workplace is mixed.
There is no explicit legal requirement for employees to have rest and meal breaks. While almost 93% of active collective agreements provide for rest and meal breaks, there are some problems regarding the organisation of work in specific sectors, which means that the actual provision of rest and meal breaks may be inadequate. Little is known about whether break provisions are included in individual employment agreements, which cover a majority of the workforce.
The proposed Employment Relations (Breaks and Infant Feeding) Amendment Bill (the Bill) seeks legislative amendments to promote and protect infant feeding by requiring employers to provide facilities and breaks for employees who wish to breastfeed, supported by a code of employment practice. The Bill would also provide an entitlement to minimum rest and meal break provisions.
A regulatory impact statement (RIS) was not submitted at the time approval for the policy relating to the Bill was sought from Cabinet, due to the time frame allowed for the preparation of that paper. The Regulatory Impact Analysis Unit has therefore not reviewed the regulatory impact analysis (RIA) or RIS for adequacy as required for proposals that meet the economically significant criteria, as decisions have already been made. The Department of Labour considers the RIA and RIS to be adequate and that they comply with the Code of Good Regulatory Practice.
Breastfeeding is key to providing the best start for New Zealand infants, and important for both infant and maternal health. This was most recently reiterated in the Government Response to the Inquiry into Obesity and Type 2 Diabetes.1
Breastfeeding is a key indicator for Health Target 8 of the Health Targets 2007/08 to improve nutrition, increase physical activity, and reduce obesity.2 A number of government initiatives are underway to protect, promote, and support breastfeeding:
(a) establishing the National Breastfeeding Advisory Committee in 2006. The Committee provides advice on breastfeeding issues, including developing a national plan for breastfeeding. The plan is being finalised for wider public comment. It recognises the need for supportive workplace breastfeeding environments to influence breastfeeding duration:
(b) implementing the Baby Friendly Hospital, and piloting the Baby Friendly Community Initiative. These initiatives aim to give women access to supportive hospital and community environments, educated health professionals, and personal education about breastfeeding:
(c) continuing the work programme to implement and monitor the International Code of Marketing of Breast-milk Substitutes in New Zealand: The Code in New Zealand (Ministry of Health, 2007):
(d) providing policy in,—
(i) Food and Nutrition Guidelines for Healthy Pregnant and Breastfeeding Women: A background paper (2006); and
(ii) Food and Nutrition Guidelines for Healthy Infants and Toddlers (Aged 0-2): A background paper, which is currently being updated and will be published by mid-2008:
(e) promoting and supporting breastfeeding under the Healthy Eating–Healthy Action (HEHA) strategy and implementation plan. Specific initiatives undertaken by HEHA include a national breastfeeding promotion campaign which is due to be launched later this year. This campaign aims to increase the proportion of infants being partially breastfed beyond 6 months:
(f) providing several publications on breastfeeding, including a pamphlet on combining breastfeeding and work, and the Department of Labour guidelines (2005) Breastfeeding in the Workplace: An employer’s guide to making it work.
The main barriers to maintaining breastfeeding for New Zealand women are lack of community support and acceptance of breastfeeding in public, and women returning to work.
The evidence about problems with mothers' access to breastfeeding breaks and facilities in the workplace is mixed. The parental leave evaluation 2005/06 found that space for breastfeeding was offered by 69% of small and 41% of large employers. Overall, 63% of employers said they offered breastfeeding facilities. This contrasts with the 19% of mothers who had returned to work from paid parental leave and said their employer offered breastfeeding facilities.
The Equal Employment Opportunities Trust’s 2006 work-life survey found that approximately 47% of surveyed employers provide a fridge for storing breast milk and about 34% provide an onsite breastfeeding space.
While there is willingness among some employers to facilitate breastfeeding, evidence nevertheless suggests workplace policies and/or provisions for the support of breastfeeding or breast milk collection and storage are ad hoc in nature, vary widely, and are in their infancy in New Zealand.3
The Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding (WHO 1990/2005) identified 4 operational targets for governments, including enacting legislation to protect the breastfeeding rights of working women.4 This target is also supported by ILO Convention 183 on Maternity Protection, which provides for the right for women to take 1 or more breaks during the working day to breastfeed their child. These breaks are to count as time worked. Maternity Recommendation 2000, R 191 also requires, where practicable, that facilities for nursing under adequate hygienic conditions be established at or near the workplace. New Zealand has not ratified either this Convention or Recommendation 191. Their status is aspirational only.
There is no explicit legal requirement for employees to have rest and meal breaks. Almost 93% of active collective agreements provide for rest and meal breaks and most commonly provide 3 breaks during an 8-hour working day. The breaks usually consist of 30–60 minutes for meal breaks and rest breaks are generally 10–15 minutes in duration. There is little information on the scheduling of breaks and this is usually at the discretion of the employer or employee in specific sectors. Little is known about whether break provisions are included in individual employment agreements, which cover a majority of the workforce. Some flow-on from collective agreements, however, is expected as occurs with other provisions.
Some problems have been identified clustered around the organisation of work in specific sectors where the nature of the job and/or the characteristics of the employees mean that provision of rest and meal breaks may be inadequate. The service and manufacturing sectors appear to be the most prone to provide less than optimal rest and meal breaks.
The scheduling and take-up of breaks may also be an issue in some workplaces. Evidence suggests that there is a lack of information available for employers when developing rosters, and scheduling and timing rest and meal breaks.
The objective of the proposed Bill is to create minimum standards for a modern workforce in respect of the promotion and protection of infant feeding through breastfeeding and provision of rest and meal breaks. It also supports government policy concerning the choices of employees, particularly regarding their work-life balance and caring responsibilities.
No alternative options were considered.
The proposed Bill seeks to promote and protect infant feeding through breastfeeding by amending the Employment Relations Act 2000 (the Act) to place a statutory obligation on employers to facilitate breastfeeding in the workplace through the provision of facilities and breaks, supported by a code of employment practice. Employees would be able to access the existing remedies and enforcement measures provided by the Act in the event of a dispute with their employer concerning the provision of breastfeeding breaks and facilities.
These amendments would improve the health and well-being of mothers and infants and would benefit both families and employers. It supports parents’ preferences, enabling mothers to return to work at a time of their choosing while continuing to breastfeed, and government policy to support parents’ choices on care for the child in the first year of life. Benefits for employers include: supporting employees to return to work earlier following childbirth should they choose; enhancing staff retention thus reducing recruitment and training costs; increasing employee morale and loyalty; and reducing employee absenteeism to care for sick infants.
Such a provision would impose minimal costs on employers. Small businesses may face difficulties establishing the physical infrastructure, such as private areas and refrigerators to store expressed milk, to comply with the amendments. The requirement to take all reasonable and practicable measures (taking into account their operational environment and resources), however, would assist employers to support breastfeeding employees in a way that best fits with their business conditions.
The proposed Bill seeks amendments to the Act to provide an entitlement to paid rest breaks and unpaid meal breaks.
It is proposed that employees be entitled to a minimum of—
one 10-minute rest break if they have worked 4 hours or less:
one 10-minute rest break and one 30-minute meal break if they have worked more than 4 hours but not more than 6 hours; and
two 10-minute rest breaks and one 30-minute meal break if they have worked more than 6 hours but not more than 8 hours.
If an employee has worked for more than eight hours, the requirements listed in the previous paragraph will apply as if their work period had started again at the end of the eighth hour.
It is proposed that the rest and meal breaks be arranged so that they are taken as near to the middle of the work period as appropriate.
These amendments provide a minimum standard across workplaces and amongst employees. Employers and employees will be able to agree on enhanced or additional entitlements to rest and meal breaks.
Employees would be able to access the existing remedies and enforcement measures provided by the Act in the event of a dispute with their employer concerning rest and meal breaks.
These amendments will not apply to employees who are already covered by other legislative provisions or regulations for rest and meal breaks, where those other provisions are enhanced or additional to the entitlements in the proposed Bill.
There is a risk that legislating for rest and meal breaks will be seen as reducing workplace flexibility. A legislative approach also presents a risk in sectors and industries where rest and meal breaks of specified duration and frequency are incompatible with business operations.
These amendments, however, are consistent with the majority of active collective agreements so would be expected to support current practice and not require a significant change to current workplace practices in most instances. They would also provide a minimum code to support provision of breaks in those sectors or workplaces where provisions may be light or restricted and where vulnerable workers are likely to be present.
The proposed commencement date for the Act is six months after the date of enactment. This is to allow sufficient time for employers to make any necessary adjustments to comply with the new requirements of the Act. It will also allow the Department of Labour sufficient time to prepare for the implementation of the Act, including communicating the new rights and responsibilities to affected parties.
The Ministry of Justice was consulted during the drafting of the Bill. The draft Bill’s provisions concerning the promotion and protection of infant feeding through breastfeeding reflect their advice.
The Ministries of Women’s Affairs and Health were informed of the content of the draft Bill. The NZCTU and Business New Zealand were also informed of the content of the draft Bill.
Hon Trevor Mallard
Government Bill
205—1
The Parliament of New Zealand enacts as follows:
This Act is the Employment Relations (Breaks and Infant Feeding) Amendment Act 2008.
This Act comes into force 6 months after the date on which it receives the Royal assent.
This Act amends the Employment Relations Act 2000.
The purpose of this Act is to insert new Parts 6C and 6D into the principal Act to—
(a) require facilities and breaks to be provided for employees who wish to breastfeed in the workplace or during work periods; and
(b) require employees to be provided with rest breaks and meal breaks.
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 4 hours or less, 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 (1) to (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) Where subsection 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.
“(2) Where subsection 69ZD(3) applies, an employer must, so far as is reasonable and practicable, provide the employee with—
“(a) the rest period one-third of the way through the work period; and
“(b) the meal break two-thirds of the way through the work period.
“(3) Where subsection 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.
“(4) Where subsection 69ZD(5) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest breaks and meal break in accordance with the applicable provision in subsections (1) to (3).
“(5) This section applies subject to any agreement between the employee and employer that the rest breaks and meal breaks are to be observed at different times during the employee's work period.
“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 an employee.
“(2) An employment agreement that excludes, restricts, or reduces an employee's entitlements under this Part—
“(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
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.”
Section 137(1)(a)(ii) is amended by inserting “6C, 6D,”
after “6B,”
.
1 Government Response to the Inquiry into Obesity and Type 2 Diabetes 2007, Presented to the House of Representatives in accordance with Standing Order 253, November 2007, refer to Cabinet Minute (07) 42/4a.
2 Minister of Health, 2007, Health Targets: Moving towards healthier futures 2007/08, Wellington, Ministry of Health.
3 Galtry, J & Annandale, M (2003), Developing Breastfeeding-Friendly Workplaces in New Zealand, Equal Employment Opportunities Contestable Fund Project.
4 The recommended duration of exclusive breastfeeding by the WHO is 6 months and complementary breastfeeding (with the introduction of other food and drinks) for up to 2 years or more. WHO advises that workplace support should be made available for the first 12 months after the birth of a baby, and that after that a woman should be more easily able to balance work and breastfeeding (WHO, 1997, WHO’s Contribution to the International Labour Organisation’s Law and Practice Report on Maternity Protection, Geneva).
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