Payment
Paid rest breaks must be paid at the same rate for which the employee would be paid to work.
- Employees should not be financially disadvantaged when rest breaks are taken.
- Employers should have no difficulty working out the value of rest breaks for employees who are paid a standard hourly rate.
- Employers must ensure that employees working on variable rates (such as piece rates) are paid for their breaks. A rate of pay for breaks can be calculated based on the rate of pay employees will have been receiving at the time of the break.
This statement sets out the Labour Inspectorate’s position on how rest break payments should be dealt with to make sure the requirements of the Employment Relations Act 2000 are met.
Labour Inspectorate position statement: Paid rest breaks
[PDF 176KB]
Negotiating breaks
Employers and employees must have a reasonable opportunity to negotiate in good faith and reach agreement over the timing and length of breaks.
An employee can take a representative (such as a family member or a union representative) along during a discussion with their employer if they’re not comfortable addressing the issue on their own.
The employer or employee can seek mediation assistance if they’re having trouble reaching agreement. When agreement is reached between an employer and employee, this should be recorded in writing and followed.
Good practice for determining when breaks are provided takes into account:
- how long the employee’s work period is
- the nature of the employee’s work
- any health and safety issues related to the work, eg fatigue
- the time of day or night that the employee’s work period starts, eg matching meal breaks to normal meal times where possible
- the interests of the employee, eg to allow enough time for rest, refreshment and to take care of personal matters
- the employer’s operational environment or resources, eg does the employer need employees to take their breaks in stages or according to a roster, in order to continue production or services, or do all employees need to take their breaks at the same time.
An employment agreement or workplace policy can give an employee extra rest and meal breaks, either paid or unpaid, above the minimum required by law.
If meal breaks are unpaid, an employer can agree that meal breaks will be for a minimum length (e.g. the minimum length that employers are required to provide is 30 minutes) but employees can take a longer break if they want to if the employee and employer agree to this.
An employee still needs to work their agreed total hours of work if they take a break longer than the agreed minimum (eg the employee could take up to an hour and add the extra work time on to the end of their working day).
An employment agreement provision that removes or reduces an employee’s minimum entitlement to take breaks or to compensatory measures, has no effect and can’t be enforced by an employer.
Compensation instead of breaks
Giving employees some form of compensation for going without breaks is only allowed in limited circumstances.
Some limited exemptions to the rules in the Act regarding rest breaks and meal breaks may apply for some employers in specified essential services or engaged for the protection of New Zealand’s national security.
If these types of employers and employees are unable to reach agreement about when to take rest breaks and meal breaks the employer must provide the employee with compensatory measures.
The compensation must be reasonable and is designed to compensate an employee for a failure to provide rest breaks or meal breaks. It may include:
- time off work at an alternative time (for example allowing a later start time or an earlier finish time, or an accumulation of time off work); or
- financial compensation; or
- both time off work at an alternative time and financial compensation.
If the compensation is time off work, this must be equivalent to the rest break or meal break entitlement the employee would have otherwise received.
If the compensation is financial compensation this must relate to the amount that the employee was required to work but would otherwise have taken as a rest break or meal break. It must also be calculated at the employee’s ordinary rate of pay, or for an employee on variable rates, the rate must be the employee’s average rate of pay in the relevant work period.
Health and safety
There are two reasons for employers to provide adequate breaks:
- to promote good morale and productivity
- to prevent fatigue causing harm.
People can't keep performing at a high level without having breaks of some sort. These should be matched to the nature and intensity of the work, eg a person in a call centre may need short frequent breaks to relieve the pressure of constant calls.
Ensuring adequate breaks can make a noticeable difference to an employee's physical and mental well-being at work. In situations where fatigue can lead to harm (such as in driving or the operation of dangerous machinery) employers have obligations to take all practicable steps to ensure that fatigue is not likely to cause harm. Employers aren’t responsible for factors outside of work that lead to fatigue or impact on an employee's ability to cope, but they do have to have systems that identify and deal with these factors when they may affect workplace safety.
Healthy work: Managing stress and fatigue in the workplace ? WorkSafe [PDF 379 KB]
(external link)
Exemptions and exceptions
Some limited exemptions may apply for some employers in specified essential services or engaged for the protection of New Zealand’s national security.
Where exemptions apply, an employer and employee can agree to take prescribed breaks in a different manner (including the number and timing of breaks) than the set breaks specified in the Act.