The Employment Relations Amendment Bill 2013 will if passed change the law inter alia relating to Rest and Meal Breaks.
New provisions deal with the timing and duration of rest breaks and meal breaks.
There is also a provision that, for the purposes of where an Employer and Employee cannot agree on when the Employee is to take his or her breaks or on the duration of the breaks, the Employer may specify reasonable times and durations that, having regard to the Employer’s operational environment or resources and the Employee’s interests, enable the Employer to maintain continuity of service or production.
There are also new provisions that relate to compensatory measures.
A new section provides that an Employer is exempt from the requirement to provide rest breaks and meal breaks:
- to the extent that the Employer and Employee agree that the Employee is to be provided with compensatory measures; or
- to the extent that, having regard to the nature of the work performed by the Employee, the Employer cannot reasonably provide the Employee with rest breaks and meal breaks.
An Employer is also required to provide the Employee with compensatory measures if the Employer is not required to provide the Employee with rest breaks and meal breaks and makes clear that compensatory measures must be reasonable and includes specific clarification as to compensatory measures that involve the Employee being provided with time off work.
A compensatory measure is defined as a measure that is designed to compensate an Employee for an Employer’s failure to provide rest breaks and meal breaks. It includes (without limitation) a measure that provides the Employee with time off work at an alternative time during the Employee’s work period, for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions. The definition of work period repeats the definition of that term in the current Act.
Summary
The Employment Relations Amendment Bill 2013 replaces provisions which relate to an Employee's entitlement:
- to rest breaks and meal breaks,
- the timing and duration of the breaks,
- and compensatory measures.
The new provisions require an Employer to provide an Employee with rest breaks and meal breaks that
- provide the Employee with a reasonable opportunity for rest and refreshment and to attend to personal matters during the Employee's work period; and
- are appropriate for the duration of the Employee's work period. A new provision provides that the Employee's entitlement to rest breaks or meal breaks may be subject to restrictions, but only if -
- the restrictions are reasonable and necessary, having regard to the nature of the Employees work; or
- if not reasonable and necessary, the restrictions are reasonable and agreed to by the Employer and the Employee (which may be in an employment agreement or otherwise).
The Bill also clarifies that an Employee’s entitlement to rest breaks is to paid rest breaks.