Muffin Break must be laughing all the way to the bank with the free publicity it is getting, thanks to Labour MP the Honourable Darren Hughes and his comments that employees forced to work through their breaks may be compensated by a muffin if amendments to the rest and meal breaks legislation are passed.

By way of background, the Employment Relations Act was amended, with effect from 1 April 2009, by the Employment Relations (Breaks, Infant Feeding and Other Matters) Amendment Act 2008. Many thought that the legislation was in fact an April Fool and questioned why we needed legislation to tell us what most employers already knew and followed as sensible business practice; that employees need reasonable breaks throughout the day.

The reality of the situation is that legislation is necessarily drafted to cover the most common situations. It is hoped that it will be able to be applied to all situations, but the reality is that often there are situations (in this case employment arrangements) which were not contemplated by the legislation, and for which it does not work.

By way of example, the legislation mandates breaks after: 2 hours but not more than 4 hours; 4 hours but not more than 6 hours; 6 hours but not more than 8 hours; and more than 8 hours.

The mandated breaks are either paid 10 minute breaks, intended effectively to be taken as morning and afternoon tea breaks in a standard 7.5 hour working day, together with an unpaid half hour lunch break.

To paraphrase, the legislation states that the breaks are to be taken at times agreed between the employer and employee, but where agreement is not reached, so far as is reasonable and practicable, in the middle of the work period.

The legislation hit the headlines last year when air traffic controllers complained that they were not able to take breaks, in accordance with the legislation, because there was no-one to cover for them. Indeed, this is not an uncommon situation.

Think of the many small stores that exist where one employee at a time is working. Not all employers are large scale employers with masses of employees available to cover while another employee takes a break (indeed, figures indicate approximately 80 per cent of New Zealand businesses employ fewer than 20 employees).

The complaint from a number of employers was that the legislation was too prescriptive. There were calls for the legislation to be amended, however at that time the Labour Minister the Honourable Kate Wilkinson declined to step in and amend the legislation and called for businesses to take a commercial and pragmatic approach to the legislation and implement it in a way that worked for them and was fair.

Now, the Employment Relations (Rest and Meal Breaks) Amendment Bill is proposed to amend the legislation, in particular, to potentially offer greater flexibility.

The Amendment Bill (to amend the Amendment Act!) The proposed amendments focus not on breaks being taken at particular times but on breaks being taken at the times and for the duration agreed between the parties. In the absence of agreement as to the taking of breaks, the proposed amendments give employers the right to specify reasonable times and durations that, having regard to the employer’s operational environment, resources and the employee’s interests, enable the employer to maintain continuity of service or production.

Employees can take some comfort from the fact that this employer right is balanced by the proposed requirement that employers provide employees with a reasonable opportunity to negotiate with the employer and reach agreement about the times and duration of breaks.

However, Mr Hughes’ concern appears to be with the proposed inclusion of the right for the parties to agree that the employee is to be provided with ‘compensatory measures’. He appears to envisage employees feeling they have no option but to accept a muffin or some other token gesture as compensation for working through a break. Think McDonalds employees being offered free burgers or café employees free drinks… What do lawyers get? I doubt it is free legal advice!

Again, I think that while there may be some employers who would seek to take advantage of the amendment (if it is passed), it recognises that for many, the current Act is too prescriptive and inflexible in relation to the taking of breaks.

Particularly when you ask the question, did we actually need to legislate the taking of breaks in the first place?

On a final side note – one break we won’t be getting is the Honourable Trevor Mallard’s proposed public holiday to mark the feats of the All Whites. That proposal was kicked aside quite promptly!

Bridget Smith

Reference: http://www.nzherald.co.nz/employment/news/article.cfm?c_id=11&objectid=10654967&pnum=0