Employment Relations Amendment Act 2018 changes to rest and meal break entitlements – May 2019

From 6 May 2019, the right to set rest and meal breaks was restored for all employees, including transport drivers. Prior to the 6 May 2019 change, the Employment Relations Act required that employees receive reasonable and appropriate rest breaks, without outlining the number, duration or position within the work day. The changes were made to provide greater clarity of rest and meal break entitlements and to benefit workplaces by helping employees work safely and productively.

The changes mean that employees are entitled to paid minimum rest breaks (10-minute break) and unpaid minimum meal breaks (30-minute break) throughout their work day. Employers and employees agree when to take their breaks. If they cannot agree the law sets out when breaks should be taken, so long as it’s reasonable and practical to do so.

Employees are entitled to take a certain number of rest breaks (10-minute paid break) and meal breaks (30-minute unpaid break) during their shifts. The number of rest and meal breaks that employees are entitled to is dependent on the length of a shift.

Breaks are generally for attending to personal matters and are a break from work-related tasks. This could be eating, drinking, going to the bathroom, or taking a mental break. When an employee takes these breaks, they need to be able to reasonably attend to these personal matters.

Here are some examples of what this means:

1. If a driver works more than six hours but not more than eight-hours in a work day, they are entitled to two 10-minute rest breaks and one 30-minute meal break.
2. If a driver works more than four hours but not more than six hours in a work day they are entitled to one 30-minute break and one ten-minute break.
3. If a driver works more than two hours but not more than four hours in a work day they are entitled to one 10-minute rest break.
4. If a driver works over eight hours, they may be entitled to further breaks for the subsequent period beyond eight hours. For example, if they work a ten-hour work day the driver would be entitled to three 10-minutes breaks and one 30-minute break.

Employers and drivers can agree when rest and meal breaks are to be taken. However, these breaks will still need to adhere to the requirements under the Land Transport Rule: Work Time and Logbooks 2007. This means drivers must have a 30-minute break after a maximum of five and a half hours of continuous work time. This break can count as the 30-minute meal break that is required under the Employment Relations Amendment Act.

It is important to note that breaks do not have to be provided every two hours. Breaks can be taken when practical for the driver and the business, provided that all parties agree. For example, a driver working from 6am to 2pm could take an initial rest break at 9:30am, a meal break at 11:30am (adhering to Land Transport rule requirement) and then, a final rest break at 1pm. Breaks can be quite flexible if both parties agree to it.

If the employer and employee cannot agree to the timing of rest and meal breaks, then the employer must provide rest and meal breaks under the prescribed times in the Act. Under these prescribed times, employees can be expected to take breaks nearly every two hours to three hours (evenly spread across a shift) unless it is not reasonable or practicable to do so.

What is reasonable and practicable is based on industry needs and the nature of the employee’s work. For example, if a service delivery route cuts through a driver’s intended break, it may not be reasonable for that break to occur when there is an expectation to get passengers or equipment to a location at a certain time. So, if service demands mean that a break is postponed, this would likely be considered reasonable.

At the extreme, depending on the nature of the employee’s work and industry needs, it could be reasonable for the rest break to be taken adjacent to the next meal break. The length of time a break is postponed will depend on particular circumstances.

If parties are having difficulty agreeing to rest and meal breaks, they can access mediation services through the Ministry of Business, Innovation and Employment (MBIE)(external link), or by calling the Employment New Zealand helpline on 0800 20 90 20.

Driver fatigue is a significant safety concern for the sector. The entitlements to rest and meal break breaks under the Employment Relations Amendment Act (the Act) will contribute to reducing the risk of driver fatigue.

The Land Transport Rule: Work Time and Logbooks 2007 (the Rule) currently requires drivers to take a 30-minute break after a maximum of five and a half hours of continous work time. Drivers will still need to do this after changes are introduced on 6 May 2019.

The breaks provided under the Employment Relations Amendment Act (the Act) are an additional entitlement to drivers. However, the 30-minute break required under the rule can count as a 30-minute meal break required under the Act. This break can also be taken at an earlier stage in the shift (for example, after four hours) to better fit with scheduling.

Breaks prescribed under the Employment Relations Amendment Act will be enforced by the Ministry of Business, Innovation and Employment. The requirements under the Rule are enforced by the Transport Agency, and the Police.

Below is an example of what a typical cumulative work day might look like for a driver under our current Rule:

A cumulative work day [PDF, 146 KB] means a period during which work occurs that does not exceed 24 hours and begins after a continuous rest period of 10 hours. In other words, a cumulative work day is a period of 13 hours or less in length dedicated to doing a job. The time outside those hours are dedicated to rest.

From 6 May 2019, this cumulative work day also includes paid 10-minute breaks. Below is an example of the entitlements a driver can now expect during a 13-hour shift.

Only urban bus drivers (large passenger service vehicle drivers) need to record 10-minute breaks in their logbooks. Bus operators are responsible for recording this information accurately.

Operators only need to do this for 12 months under the Land Transport Rule: Work Time in Large Passenger Service Vehicles 2019. Find out more about the new rule.

If you are not an urban bus driver, you do not need to record 10-minute breaks in your logbook. However, if you or your employer wish to record all breaks, then you can do so. If your logbook is set out in 15 minute or other intervals, then you will need to record this information to the best of your ability.

The Employment Relations Amendment Act states that if an employee works a shift more than four hours but less than six hours, they are entitled to one paid 10-minute break and one 30-minute break. This means that if a driver works a five-hour shift, they are entitled to one 10-minute break and one 30-minute break. The timing of these breaks can be agreed between the driver (or union) and their employer. If parties cannot agree, the employer must provide breaks under the prescribed times in the Act (a 10-minute break one-third of the way through the work period, and a 30-minute break two-thirds of the way through the work period).

A transport operator who holds a public transport service contract(s) with a regional council (including Auckland Transport) should discuss with the council the potential impact of implementing the new rest and meal break provisions and how to manage those impacts. This will include determining the potential financial impact of increased breaks and how any additional costs will be met. Costs may differ from operator to operator, unit to unit, and region to region.

To ensure drivers receive their full entitlements to breaks under the Employment Relations Amendment Act and to avoid disruption to services, a temporary Land Transport Rule has been drafted. Access information about the Land Transport Rule: Work Time in Large Passenger Service Vehicles 2019.

If truck drivers are operating as a self-employed contractor, the Employment Relations Amendment Act does not apply to them and they only need to adhere to the Land Transport Rule: Work Time and Logbooks 2007. However, if a company is contracted to provide services and employs a truck driver, that driver is entitled to rest and meal breaks.

If drivers are not sure about their status as an employee or contractor, further information can be found here on the Employment New Zealand website(external link).