Rest And Meal Break Entitlements
As of 06 May 2019 amendments to the Employment Relations Act (ERA) re-introduced strict requirements with regards to rest and meal breaks for employees.
Employees must receive set rest and meal breaks “so that they have time to rest, refresh and attend to personal matters”. The number and duration of the breaks depend on the hours worked.
Minimum Amount And Length Of Breaks
Employers must pay for minimum rest breaks of 10 minutes each, but don’t have to pay for minimum meal breaks of 30 minutes each. Employers and employees need to agree when the employee will take their breaks, otherwise there are guidelines for when during a shift a break should be taken. The minimum number and length of rest breaks is specified below. Paid rest breaks must be paid at the same rate for which the employee would be paid to work.
Length of employee’s work periodMinimum number of rest and/or meal breaks employees are to be provided.Above 2 hours, up to 4 hours1 x 10 minute paid rest breakAbove 4 hours, up to 6 hours1 x 10 minute paid rest break1 x 30 minute unpaid meal breakAbove 6 hours, up to 10 hours1 x 10 minute paid rest break1 x 30 minute unpaid meal break1 x 10 minute paid rest breakAbove 10 hours, up to 12 hours1 x 10 minute paid rest break1 x 30 minute unpaid meal break1 x 10 minute paid rest break1 x 10 minute paid rest breakAbove 12 hours and up to 14 hours1 x 10 minute paid rest breakFirst 30 minute unpaid meal break1 x 10 minute paid rest break1 x 10 minute paid rest breakSecond 30 minute unpaid meal breakAbove 14 hours and up to 16 hours1 x 10 minute paid rest breakFirst 30 minute unpaid meal break1 x 10 minute paid rest break1 x 10 minute paid rest breakSecond 30 minute unpaid meal break1 x 10 minute paid rest break
When Should Breaks Be Taken?
The employer and employee can discuss and agree when the rest and meal breaks are to be taken. If they cannot agree, the law will require the breaks to be taken at times as specified in the ERA, so long as it’s reasonable and practicable.
Both parties must act in good faith when negotiating. 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. As part of this, employers should be proactive about reminding employees of their right to rest and meal breaks.
A ‘take it or leave it’ approach by an employer, for example, is not likely to be seen as an agreement but rather a unilateral decision.
In negotiating break times, employers also need to consider health and safety requirements. You can keep track of employee rest and meal breaks with our BrightHR software, and manage health and safety risks with BrightSafe.
If the employer and employee(s) can’t reach an agreement, there are mediation services available.
Mandated Break Times
If there is still disagreement, there are mandated break times in the ERA. The employer should provide rest and meal breaks as close to the times mandated by the rules, so far as they are reasonable and practicable to the business’ own circumstances.
However, the employee must also weigh up the relevant needs of the employee. For example, the length of time since their last break and the intensity of their work.
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 ERA, 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 ERA.
The mandated break times are as follows:
Length of employee’s work periodMinimum number of rest and/or meal breaksIf the employer and employee cannot agree to the timing of breaks, an employer must provide breaks at the following times, so far as is reasonable and practicable.Above 2 hours, up to 4 hours1 x 10 minute paid rest breakIn the middle of the work periodAbove 4 hours, up to 6 hours1 x 10 minute paid rest breakOne-third of the way through the work period 1 x 30 minute unpaid meal breakTwo-thirds of the way through the work periodAbove 6 hours, up to 10 hours1 x 10 minute paid rest breakHalfway between the start of work and the meal break x 30 minute unpaid meal breakIn the middle of the work period1 x 10 minute paid rest break of the work periodHalfway between the meal break and the finishAbove 10 hours, up to 12 hours1 x 10 minute paid rest breakHalfway between the start of work and the meal break 1 x 30 minute unpaid meal breakIn the middle of the first 8 hours of work 1 x 10 minute paid rest break Halfway between the meal break and the end of the first 8 hours of work 1 x 10 minute paid rest break Halfway between the end of the first 8 hours of work and the end of the work periodAbove 12 hours and up to 14 hours1 x 10 minute paid rest breakHalfway between the start of work and the first meal break First 30 minute unpaid meal breakIn the middle of the first 8 hours of work 1 x 10 minute paid rest breakHalfway between the meal break and the end of the first 8 hours of work 1 x 10 minute paid rest breakOne third of the way between the end of the first 8 hours of work and the end of the work period Second 30 minute unpaid meal breakTwo thirds of the way between the end of the first 8 hours of work and the end of the work period.Above 14.00 hours and up to 16 hours1 x 10 minute paid rest breakHalfway between the start of work and the first meal break First 30 minute unpaid meal breakIn the middle of the first 8 hours of work 1 x 10 minute paid rest breakHalfway between the first meal break and the end of the first 8 hours of work 1 x 10 minute paid rest breakHalfway between the end of the first 8 hours and the second meal break Second 30 minute unpaid meal breakHalfway between the end of the first 8 hours and the end of work 1 x 10 minute paid rest breakHalfway between the second meal break and the end of work
Exemption
All industries must adhere to these break requirements, with a few very limited exemptions.
If a specific break is detailed in another piece of legislation, then that entitlement takes precedence over what is set in the ERA, but only as far as the other legislation provides for additional or enhanced breaks.
If the employer is engaged with New Zealand’s national security industry, or in an “essential service” (as defined in schedule 1 of the ERA , found here), they may be exempt from providing set rest and meal breaks.
If you think your business or industry is considered an “essential service”, please ring in as the criteria for exemptions is quite complex.
And then if there still isn’t an agreement…
.If an exemption applies, and the employer and employee still can’t agree on work breaks, the employee may be entitled to compensation. If you think your business or industry is considered an “essential service”, please call Employsure for free initial advice as the criteria surrounding exemptions are quite complex.
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