Employees are entitled to paid rest and unpaid 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.
Employees are entitled to set rest and meal breaks. Compensation for the employee will only be allowed instead of these breaks if an exemption applies and certain requirements are met.
The length and timing of rest and meal breaks are based on the number of hours an employee works in a day. The Act provides an exemption from the required set rest and meal break entitlements in certain circumstances for essential services or employers that engage in New Zealand’s national security.
Employers and employees should agree when the breaks are to be taken. If the employer and employee cannot reach an agreement on the timing of breaks, the law will require the breaks to be taken at times as specified in the Act, so long as it’s reasonable and practical.
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.
The minimum length of breaks required by law is 10 minutes for rest breaks and 30 minutes for meal breaks.
Calculating rest break payments
- 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.
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 available 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.
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:
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.
Employers engaged in an essential service may be exempt if:
- continuity of service or production in the essential service is critical to the public interest, including (without limitation) services affecting public safety; and
- the employer would incur unreasonable costs in replacing an employee employed in the essential service during the rest breaks and meal breaks with another person who has sufficient skills and experience, and without compromising public safety.
Employers engaged in the protection of New Zealand's national security may be exempt if:
- continuity of service is critical to New Zealand’s national security; and
- the employer would incur unreasonable costs in replacing an employee employed in the protection of New Zealand’s national security during the rest breaks and meal breaks with another person who has sufficient skills and experience, and without compromising New Zealand's national security.
Other legislative exceptions
All employees (unless their employer is exempt) must at a minimum receive the rest and meal break entitlements set by the Employment Relations Act. If an employee is required to take a break under other legislation, that legislation applies to determine how and when the breaks are to be taken.
For example, the Land Transport Rule: Work Time and Logbooks 2007 (external link) made under the Land Transport Act 1998 requires that a 30-minute break is taken after 5 and ½ hours of driving, and must be taken outside of the work vehicle.
There is more information on how the Employment Relations Amendment Act 2018 impacts the drivers and employers in the commercial transport sector on the NZTA website (external link)
If an employee thinks they are not being allowed to have the breaks they are entitled to, they should first raise the matter with their employer.
The expectation of the Labour Inspectorate is that employers and employees will be able to work out how and when applicable breaks will be taken. In the event of a failure to agree, they can contact us. If employees are union members, they can seek assistance from their union.
Mediation between employers and employees remains an option with the Employment Relations Authority being available to ultimately determine the matter in the unlikely event of a failure to agree. In the event a case was serious enough to warrant the intervention of the Labour Inspectorate, they are likely to seek penalties for any established breach.
Tools and Resources
Minimum rest and meal breaks for employees - PDF 278KB
Outlines minimum requirements by length of work period.
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