Recent changes to the ERA reflect the changing nature of the modern workplace, including changing the regulations around breaks during work hours.
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.
That breaks will not be taken but compensatory measures will be provided.
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.
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.
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 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.
If you have any questions about these changes or any other employment related matters, please contact our specialist Employment Team.