Rest and Meal Break changes imposing further obligations on Employers
The Employment Relations Amendment Bill 2018 is proposing a number of changes to employment law, one of these changes is in relation to the timing of meal and rest breaks taken by Employees.
If you think back to a time before the 2016 Amendment Act where meal and rest breaks were prescribed by the Act – you may remember that these were not practical for many employment environments – the Amendment Bill is proposing to add these back into the current legislation.
This means that a default break schedule, as defined by legislation, will apply and operate in all employment relationships unless the parties agree otherwise. The proposed provisions are:
- between 2-4 hours, a 10 minute rest break must be taken in the middle of that period;
- between 4-6 hours, a 10 minute rest breaks one third of the way through the work period and a 30 minute rest break two (2) thirds of the way through the work period; and
- between 6-8 hours, a 10 minute rest break between the start of work and the meal break, a 30 minute meal break in the middle of the work period, and a 10 minute rest break between the meal break and the finish of work.
If you work in the construction industry or carrier services, you will know that having prescribed break times such as these will not work well for your business and may even cause significant disruption to the operation of your business.
However, there is a way to get around Employees taking breaks at these prescribed times. The Employer and Employee can agree at the times breaks are to be taken. This means that there could be a completely different regime of rest and meal breaks operating within your business, as long as there is mutual agreement. If no agreement is reached, the default legislative timing of breaks will apply.
What will you need to do to ensure you are not breaching the Act if this provision is passed into law? If, by mutual agreement, the Employee and Employer come to a different break arrangement – i.e a one (1) hour break to be taken in the middle of the Employee’s working day – record it in writing and retain these records. This could be recorded within your Employment Agreements, a Policy, or even a weekly breaking schedule which sits alongside the roster.
It is imperative that Employers do this in case a complaint is made to the Labour Inspector. If you cannot prove that you and the Employee agreed to a different breaking schedule, you may be penalised by the Labour Inspector.
There are likely to be further exemptions that will apply to taking meal breaks including if you: work in an essential service; and the continuity of service or product is crucial to public interest or public safety; and the Employer will would incur unreasonable cost in replacing an Employee with similar skills or experience. If you can satisfy all three (3) of these requirements, an Employer will be considered exempt from taking breaks as defined within the Act. However, if this is the case, the Employer and Employee will need to mutually agree when rest and meal breaks will be taken.
The Employer may also be able to compensate the Employee if they cannot reach an agreement as to when rest and meal breaks are to be taken. Compensation could be in the form of time off work, or monetary compensation, which is equal to the rest and meal break times.
If you require further advice about what the changes to rest and meal breaks could mean for you, or would like us to draft a Policy for rest and meal breaks, please do not hesitate to contact us – we would be happy to help.