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 workplace.

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:

  1. The timing and duration of breaks;
  2. That breaks will be restricted;
  3. That breaks will not be taken but compensatory measures will be provided.

If you cannot agree, the employer can make a reasonable decision

If you cannot agree how breaks will be taken the amendments give the employer the authority to decide:

  1. When a break will be taken and for how long based on reasonable grounds; or
  2. That restrictions will be imposed on breaks if this is reasonable and necessary, having regard to the nature of the employee's work; or
  3. 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 circumstances.

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.