Can you still have a tea break at work?

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Last year the government removed the right to mandatory tea breaks. The Prime Minister reassured New Zealanders that ‘post the passing of this law, will you all of a sudden find thousands of workers who are denied having a tea break? The answer is absolutely not’. We now know the Prime Minister’s assurance could be misleading. Companies are already proposing to remove tea and meal breaks for workers. How long before other major chains try and follow suit? Do you have to give your staff a tea break? Employment law expert Tina Hwang digs a little deeper to find out what the tea break law changes mean for employers.

Recently there has been widespread controversy around the fact that Parliament passed an amendment to our Employment Law (Employment Relations Act 2000) which became law in November 2014 (through the Employment Relations Amendment Act 2014).

The changes (click here for the statutory section) stripped away the previous employment laws which guaranteed employees a paid 10 minute rest break if they were working for 2-4 hours; one paid 10 minute rest break and one unpaid 30 minute meal break if the worker was working between 4-6 hours; and two paid 10 minute rest breaks and one unpaid 30 minute meal break if the work period was between 6-8 hours.

The new laws packaged as giving more flexibility to employers and employees does not guarantee or provide minimum break times, but requires employers to give employees a reasonable chance to “rest, refreshment, and atten[d] to personal matters” and are “are appropriate for the duration of the employee’s work period.” There are no specific rules for the length or timing of the rest and meal breaks. The spirit of “good faith” remains, but practically this gives employees very poor bargaining power to demand paid rest/meal breaks.

The Department of Labour has recommended that “rest breaks are 10–15 minutes long and meal breaks at least 30 minutes long, but these times vary across industries and occupations” again making this optional for employers.

The bill was contentious last year as reported by the New Zealand Herald (click here for a copy of the article).

Parliament was also divided when debating the bill in October 2014. Hon Peseta SAM LOTU-IIGA (Minister of Corrections) opened the third and last reading of the Bill by stating that “[t]he Bill makes the rest and meal break rules in the Employment Relations Act more flexible. It maintains the importance of rest and meal breaks, while making sure that they are practical for each workplace.” IAIN LEES-GALLOWAY (Labour—Palmerston North) stated “[w]e started a petition a mere week ago. Today that petition was tabled in Parliament—51,628 New Zealanders have signed the petition over the last week because they want this Government to know that getting rid of rest and meal breaks will make them less safe and less productive at work.” JONATHAN YOUNG (National—New Plymouth) supported the Bill by asking “[i]magine a parking building that has a sole attendant. How would you feel, Mr Lees-Galloway, if you were unable to leave the building for 10 minutes because the attendant was on their statutory break? These are just common-sense issues.”

For a full account of the Hansard (Parliamentary debate by MPs) please click here.6021598

The amendment has been criticised as having taken away a fundamental worker’s right to a break during work and therefore creating a dangerous workplace, quite contrary to the apparent purpose of providing a flexible, practical and common-sense approach.

Recent outrage occurred as a big corporate company trading as Cotton On announced that they would be taking away their worker’s tea breaks. For a full detail of the article, please click here.  First Union general secretary has stated “Cotton On is trying to take advantage of a law that was always meant to strip workers of their rights.” There was so much outrage in fact, that Cotton On had no choice but to back down on their plan in less than 24 hours as announced by the NZ Herald on Tuesday 24 March 2015 (please click here for a copy of the full article). However, employees working at a smaller company with less media coverage may find themselves subject to changes in their contract stripping them of their tea break rights because the employers can now rightfully do that under the amended Act. However employers should always act in “good faith” as required under the Act.

For any advice on employment law, please contact Senior Solicitor Tina Hwang (click here for a link to her profile) or Solicitor Rita Worner (click here for a link to her profile).

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