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Formalising Rest and Meal Breaks 2019

Published June 05, 2019 (last updated December 2, 2020) Author: Employsure
Rest-And-Meal-Break-In-The-Office

The new rest and meal breaks law

The new amendments to the Employment Relations Act (ERA) have re-introduced strict requirements with regards to rest and meal breaks for employees.

After 6 May 2019 – when the ERA came into effect – 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 will depend on the hours worked.

Employers must pay for minimum rest breaks but don’t have to pay for minimum meal breaks. Employers and employees need to agree when the employee will take their breaks. If they cannot agree, the law will require the breaks to be taken at times as specified in the Act, so long as it’s reasonable and practicable.

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 break
Above 4 hours, up to 6 hours1 x 10 minute paid rest break
1 x 30 minute unpaid meal break
Above 6 hours, up to 10 hours1 x 10 minute paid rest break
1 x 30 minute unpaid meal break
1 x 10 minute paid rest break
Above 10 hours, up to 12 hours1 x 10 minute paid rest break
1 x 30 minute unpaid meal break
1 x 10 minute paid rest break
1 x 10 minute paid rest break
Above 12 hours and up to 14 hours1 x 10 minute paid rest break
First 30 minute unpaid meal break
1 x 10 minute paid rest break
1 x 10 minute paid rest break
Second 30 minute unpaid meal break
Above 14 hours and up to 16 hours1 x 10 minute paid rest break
First 30 minute unpaid meal break
1 x 10 minute paid rest break
1 x 10 minute paid rest break
Second 30 minute unpaid meal break
1 x 10 minute paid rest break

The employer and employee can discuss and agree when the rest and meal breaks are to be taken.

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 a agreement but rather a unilateral decision.

In negotiating break times, employers also need to consider health and safety obligations.

If the employer and employee(s) can’t reach an agreement, there are mediation services available.

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.
2.00 – 4.00

 

hours

1 x 10 minute paid rest breakIn the middle of the work period
4.01 – 6.00

 

hours

1 x 10 minute paid rest breakOne-third of the way through the work period
1 x 30 minute unpaid meal

 

break

Two-thirds of the way through the work period
6.01 – 10.00

 

hours

1 x 10 minute paid rest breakHalfway between the start of work and the meal

 

break

1 x 30 minute unpaid meal

 

break

In the middle of the work period
1 x 10 minute paid rest breakHalfway between the meal break and the finish

 

of the work period

10.01 – 12 hours1 x 10 minute paid rest breakHalfway between the start of work and the meal

 

break

1 x 30 minute unpaid meal

 

break

In 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 breakHalfway between the end of the first 8 hours of

 

work and the end of the work period

12.01 to 14 hours1 x 10 minute paid rest breakHalfway between the start of work and the first

 

meal break

First 30 minute unpaid meal

 

break

In 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

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.
 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.

14.01 to 16 hours1 x 10 minute paid rest breakHalfway between the start of work and the first

 

meal break

First 30 minute unpaid meal

 

break

In 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 break

Halfway 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

Exemptions

All industries must adhere to these laws, 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…

This pdf (bottom of page 5) from Employment NZ gives an indication of possible solutions. If you’re still unsure, please feel free to contact Employsure.

About Employsure

Employsure is one of New Zealand’s largest workplace relations advisers to small and medium businesses, with over 5,500 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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