On 6 March 2015 amendments to the Employment Relations Act 2000
came into force. The changes cover a range of employment matters
but two sets of changes reflect the changing nature of the modern
It is no longer the case that everyone works 9 – 5, Monday
to Friday. There are many different variations of working hours and
arrangements and changes to breaks and flexible working requests
reflect the view that each employer and employee will be able to
agree working arrangements that best suit them. This article looks
at the changes to breaks – in our next newsletter we will
consider changes to flexible working requests.
The key change for breaks is a move away from the prescriptive
formula previously applied. There is no longer an absolute
requirement that if an employee works a certain number of hours
he/she will be entitled to a set break.
As a starting point employers must now provide breaks that
"provide the employee with a reasonable opportunity, during
the employee's work period, for rest, refreshment, and
attention to personal matters; and are appropriate for the duration
of the employee's work period."
Attempt to agree between the parties
If you negotiate new break entitlements with current employees
or you employ new employees and are setting break entitlements then
the amended legislation can be applied. The amendments allow for
the parties to agree:
The timing and duration of breaks;
That breaks will be restricted;
That breaks will not be taken but compensatory measures will be
If you cannot agree, the employer can make a reasonable
If you cannot agree how breaks will be taken the amendments give
the employer the authority to decide:
When a break will be taken and for how long based on reasonable
That restrictions will be imposed on breaks if this is
reasonable and necessary, having regard to the nature of the
employee's work; or
That breaks will not be provided, if due to the nature of the
work the employer can not reasonably provide breaks.
When making these decisions an employer must act in good faith
and only make decisions which are justifiable i.e. what a fair and
reasonable employer could have decided in all the
Payment for breaks
The amendments make a distinction between rest breaks and meal
breaks (although neither is defined). Meal breaks do not need to be
paid. However if a meal break is restricted such that an employee
is working during his/her meal break (for example, eating lunch at
the shop counter and continuing to watch the store and serve
customers) then it should be paid.
Compensation for not taking breaks
Compensatory measures are to be provided: where the employer and
employee agree that a break is not taken and compensation is to be
provided; or where, because of the nature of the work performed,
the employer cannot provide the employee with a break. Compensatory
measures include time off work at an alternative time such as
starting later or finishing early.
Overall effect of the amendments
Overall the amendments mean that employers now have more
flexibility in how they can allow breaks to be taken based on
either, what can be agreed with employees or what the
employer's business requires. The ability to swap breaks for an
early finish or a later start allows employers and employees the
flexibility to accommodate temporary or even permanent changes to
work patterns that facilitate people working outside the standard 9
to 5 routine of old.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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