Rest and meal breaks
All employers are required to provide employees with rest and meal breaks which:
- give employees a reasonable chance during their work period to rest, refresh and take care of personal matters and,
- are appropriate for the length of time an employee has worked for the employer.
However there are no specific rules for how long, or when, rest and meal breaks should be. Employers and employees should bargain in good faith over the timing and length of breaks.
Common practice is that rest breaks are 10–15 minutes long and meal breaks at least 30 minutes long, but these times vary across industries and occupations. If an employee is unsure what general practice in their industry is, he or she can check with their industry association or union. When agreement is reached between an employer and employee, breaks should be taken in line with that agreement.
Unpaid meal breaks
Where meal breaks are unpaid, parties to an employment agreement can agree that meal breaks will be for a minimum length (e.g. 30 minutes) and that employees can take a longer break if they wish (eg up to 1 hour). An employee would still need to complete their agreed paid hours of work if they take a break longer than the agreed minimum.
When there is no agreement between employer and employee
Employers must give employees a reasonable chance to negotiate the timing and length of the employee’s rest and meal breaks, and try to reach agreement in good faith. However if employers and employees cannot agree on the timing and duration of breaks, employers can set reasonable times and lengths for breaks. An employer can arrange breaks so that service or production continues and which takes into account the employer’s operational environment or resources. An employer can also take into account the interests of employees.
Good practice for determining what breaks are provided, when and for how long, 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, for example fatigue
- the time of day or night that the employee’s work period starts – eg can meal breaks match normal meal times?
- the interests of the employee – e.g. 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?
When an employer can restrict rest and meal breaks
Employers can only restrict rest and meal breaks when the restrictions are reasonable and:
- necessary, considering the nature of the employee’s work – in this case the employer can specify what restrictions apply
- agreed to by the employer and employee, whether in an employment agreement or not.
In some situations restrictions on breaks may be necessary – for example where an employee cannot fully enjoy their breaks without interruption, or may need to partially focus on work during a break. Employers and employees should discuss in good faith whether restrictions are reasonable and necessary.
Restrictions on an entitlement to rest and meal breaks are only permitted when they involve:
- the employee continuing to be aware of their work duties or (if needed) continuing to do some of their work duties, during the break
- the employee’s break being interrupted in certain circumstances
- the employee taking his or her break in the workplace or at a specified place within the workplace.
Restrictions that are reasonable might include:
- allowing healthcare workers to deal with an emergency
- enabling a sole-charge worker to respond to customers
- a situation where another team member needs urgent help.
Reasonableness will depend on the circumstances of the workplace. For example, it may not be reasonable to require an employee’s break to be interrupted where an employer has failed to roster enough staff on to cover a normal busy period of work.
Employers and employees can agree to no rest or meal breaks
An employee and employer can agree to compensation instead of breaks. However employers must compensate employees if no break is given where a break would be appropriate.
When an employer is not required to provide breaks
An employer does not have to give rest and meal breaks if breaks cannot reasonably be given, considering the nature of an employee’s work. However employers must compensate employees if this happens.
What is appropriate compensation?
There are no set rules as to what appropriate compensation is. However where compensation is provided to an employee it must always be reasonable. Giving an employee time off work, instead of a break, is reasonable if:
- the employee gets the same amount of time off as they would otherwise have taken as a break or
- the time off is given on the same basis as the break that the employee would have otherwise taken. For example if the break that was not taken wouldn’t have had restrictions, then the compensatory break should not have restrictions.
Employers can give other types of compensation to employees, as long as they are reasonable. Compensation is reasonable if it’s of a similar value to the break.
Employees and employers cannot contract out of the legal right to rest and meal breaks or compensation
An employment agreement that requires an employee to take no breaks (without providing compensation) or that includes restrictions not allowed by the Act, would exclude an employee’s entitlements. Therefore that part of the agreement would have no effect and could not be enforced by an employer.
Additional rest and meal breaks
Employers and employees are free to agree to additional entitlements to rest and meal breaks — either paid or unpaid. Good practice would be to record these in an employment agreement or similar.
The new rest and meal break provisions do not:
- affect or replace existing agreements that provide for additional paid or unpaid rest breaks and meal breaks.
- any changes to existing agreements need to be agreed to by employees and employers.
Where an employee is required to take a rest break under another enactment, that enactment applies instead of the entitlements to rest and meal breaks under the Employment Relations Act. This would include, for example, the Land Transport Rule: Work Time and Logbooks 2007 made under the Land Transport Act 1998.
Employers may be liable to a penalty imposed by the Employment Relations Authority if they do not comply with minimal standards for rest and meal breaks.
The Authority will also have the power to order employers to comply with their obligations.