Employees are entitled to rest and meal breaks that:
- give them a reasonable chance during work periods to rest, refresh and take care of personal matters
- are appropriate for the length of their working day with the employer.
Rest breaks benefit workplaces by helping employees work safely and productively. Employers must pay for minimum rest breaks but don’t have to pay for minimum meal breaks.
Currently, the law doesn’t specify the timing, number or length of breaks – it is agreed between the employee and employer. From 6 May 2019, employees are entitled to set rest and meal breaks. Compensation will only be allowed instead of these breaks if an exemption applies and certain requirements are met.
Currently, there are no specific rules for when or how long rest and meal breaks should be and employers must give their employees 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.
If the employer and employee haven’t agreed the time and/or length of breaks, the employer can choose reasonable times and lengths that help maintain workplace service or production, taking into consideration the employer’s operational environment or resources, and the employee’s interests.
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, 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.
Common practice is that rest breaks are 10 to 15 minutes long and meal breaks are at least 30 minutes long, but these times vary across industries and occupations. If you are unsure what the general practice in your industry is, you can check with your industry association or union.
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, or
- agreed to by the employer and employee, whether in an employment agreement or not.
An employer can only restrict rest and meal breaks if the restrictions relate to one or more of the following:
- 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 circumstances when the employee’s break may be interrupted
- the employee taking his or her break in the workplace or at a specified place within the workplace.
Employers and employees should discuss in good faith whether restrictions are reasonable and necessary.
Restrictions that are reasonable might include:
- allowing healthcare workers to deal with an emergency
- allowing a sole charge worker to respond to customers
- a situation where another team member needs urgent help.
Being reasonable depends on the circumstances of the workplace. For example, it may not be reasonable to require an employee’s break to be interrupted because the employer didn’t roster on enough staff on to cover a normal busy period of work.
An employment agreement or workplace policy can give an employee extra rest and meal breaks, either paid or unpaid.
If meal breaks are unpaid, an employer can agree that meal breaks will be for a minimum length (eg 30 minutes) but employees can take a longer break if they want to. 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 one 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 entitlement to take breaks (without providing reasonable compensation) or to compensatory measures has no effect and can’t be enforced by an employer.
Employers and employees can agree to not having rest or meal breaks
Currently, an employee and employer can agree to reasonable compensation instead of breaks.
An employer doesn’t have to provide rest or meal breaks
An employer does not have to give rest and meal breaks only if breaks cannot reasonably be given, considering the nature of an employee’s work. However employers must provide reasonable compensation to the employee if no break is given where a break would be appropriate.
On 6 May 2019 the law will change and set breaks must be provided unless an exemption applies and certain requirements are met.
There are no set rules as to what reasonable compensation measures are but if the employee gets time off work, instead of a break, this 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 shouldn’t have restrictions, eg the employee is allowed a later start time, earlier finish time, or they can add several compensatory breaks together and take a longer break.
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.
Guidance from WorkSafe New Zealand:
If an employee has to take a specific break under legislation, that legislation applies instead of any break entitlement under the Employment Relations Act 2000.
For example, the Land Transport Rule: Work Time and Logbooks 2007 (external link) made under the Land Transport Act 1998.
Employees should talk to their employer first if they believe they are not allowed their entitled breaks.
The Labour Inspectorate expects employers and employees to work out how and when to take applicable breaks. Union members can seek help from their union. If they fail to agree, they can contact us for mediation.
The Employment Relations Authority can determine the matter if mediation fails.
For serious breaches the Labour Inspectorate would likely seek penalties.