9.05.2018

Make time for tea – do your employees take their breaks?

Most employers are now cognisant that employees are entitled to rest breaks and meal breaks during the employee’s working hours. What may not be so clear are the employer’s obligations to inform an employee of their break entitlements and to ensure that those breaks are taken. A recent Authority case, Duffy v Kindercare Learning Centres Limited, highlighted this very point and is a timely reminder for all.

Statutory Break Entitlements
To recap, the Employment Relations Act 2000 (“Act”) creates statutory entitlements to rest breaks and meal breaks. An employee is entitled to, and the employer must provide, rest and meal breaks in accordance with the Act. The employee’s entitlements are as follows:

  • Where the employee works for 2-4 hours, a 10 minute paid rest break;
  • Where the employee works for 4-6 hours, a 10 minute paid rest break and a 30 minute unpaid meal break;
  • Where the employee works 6-8 hours, two 10 minute paid rest breaks and one 30 minute unpaid meal break; and
  • Where the employee works for more than 8 hours, breaks up until the 8th hour and then additional break entitlements as if a new work period have commenced at the end of the 8th hour.

An employer and employee can also agree to enhanced or additional entitlements to rest and meal breaks.

The Case
Ms Duffy claimed that she was unjustifiably disadvantaged in her employment by Kindercare as she claimed her employer failed to provide rest and meal breaks. Ms Duffy advanced the argument that she was unaware of her statutory right to breaks as she was a recent immigrant to New Zealand. Ms Duffy’s employment agreement only advised her of a half hour unpaid lunch break on her working days.

The employer, Kindercare, agreed that Ms Duffy was entitled to rest and meal breaks and that no employee had ever been told that they could not take a break. It was noted that employees are not instructed to take breaks but are free to take breaks if they choose to do so.

The Authority stated that the law is clear: “An employer must provide breaks. The word must implies compulsion. To provide is to supply or furnish something. Here the duty to provide falls upon the employer”. In a further direction to all employers, the Authority stated that “the employer must be proactive to ensure that which it is required to do is done”.
The Authority found that an employer must ensure the provision of breaks – Kindercare had not done so. Kindercare was therefore in breach of the duty imposed by the Act and, as a result, Ms Duffy had been deprived of a benefit. Ms Duffy had therefore been disadvantaged and had a personal grievance as claimed.

The Consequences
When the Authority turned to remedies in Duffy, it was hamstrung. The usual way to address a breach of the rest and meal break legislation would be through compliance or penalty actions (up to $20,000 in the case of a company or other corporations) but neither were sought or addressed by Ms Duffy. Further, Ms Duffy had already been paid for the rest breaks she had not taken.

Ms Duffy was therefore awarded compensation for the hurt and humiliation she had suffered. Since Ms Duffy provided sparse evidence of her hurt and humiliation, the nominal amount of $750 was awarded.

In our view
Simply put, employees are entitled to rest and meal breaks and employers are required to make employees aware of the statutory entitlements and to make sure provisions are made so that breaks can be, and are, taken. The Authority’s determination makes it clear that an employer cannot simply sit back and do nothing – it must take steps to comply with its statutory obligation to provide breaks.

We recommend that break entitlements are recorded in an employee’s employment agreement or detailed in a company policy. Thought should also be given to the timing of breaks: whether all employees should take their breaks at the same time, on a rotational roster, or as and when business demands dictate.

However, we note that the rest and meal break provision in the Act are set to change, likely in early 2014. This change will enable employers to impose restrictions on rest and meal breaks if reasonable and necessary or where the restrictions are reasonable and agreed between employer and employee. The change will also enable an employer to provide reasonable “compensatory measures” if meal breaks cannot be provided.

Until that time, the Authority’s determination spells out that employers have obligations they must uphold – or face the consequences.

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