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Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill - Submission to the Transport and Industrial Relations Select Committee [2010] NZHRCSub 11 (11 June 2010)

Last Updated: 28 June 2015

11 June 2010

Graham Hill

Clerk of the Committee

Transport and Industrial Relations

Parliament Buildings

Wellington

_{Dear Graham}

Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill

The Human Rights Commission appreciates the opportunity to provide some comments on the Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill.

The Commission opposes the bill on the basis that:

It is a retrogressive step that erodes recently introduced protections for rights to decent work, rest and leisure, health and safety

It removes minimum standards that provide important protections for vulnerable workers

The law currently provides a degree of flexibility – blanket removal of protections is a precipitate and disproportionate response.

The Commission strongly supported the 2008 legislative amendment which requires employers to provide paid rest breaks and unpaid meal breaks. The Commission considered that it provides adequate flexibility, while also providing important added certainty and protection for vulnerable workers.

The present bill would remove those protections, replacing the definite entitlements specified in the current law, with increased discretion in the hands of the employer to specify „reasonable‟ times and durations, or to replace breaks with „compensatory measures‟. Neither of those terms is defined and both are open to wide interpretation, creating greater opportunities for disagreement between employers and employees, and giving ultimate say on how or whether employees may take breaks, to the employer.

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Need for mandated rest breaks

Internationally, there have been standards set for rest breaks. The International Labour Office (ILO) framework for promoting decent working time has been developed from ILO standards, complemented by research. Decent working time arrangements are required to fulfil five interconnected criteria: they should preserve health and safety; be family friendly; promote gender equality; enhance productivity; and facilitate worker choice and influence over working hours. ¹

The ILO reports that just over two thirds of the over 100 countries covered by their report on working time laws, mandate by legislation, rest breaks during the working day. “The most wide spread approach is to require a rest break of at least

30 minutes in length, although a substantial number of countries require a break of 45 minutes or more.” “Among the industrialised economies, all European countries entitle their workers to a break during the working day.”²

The Commission noted that at the time of the 2008 Amendment, Business New Zealand stated that “employers were naturally in favour of adequate meal and rest breaks”. While a great many employers readily provide adequate meal and rest breaks, and provisions are commonplace in employment agreements, practice is not consistent in all sectors or by all employers. Young people, people working in the food service sector, migrant workers and inexperienced workers are particularly vulnerable. This vulnerability is particularly acute in the current environment of high unemployment in which employment is less secure.

The Commission believes that legislation is still vitally important to guarantee this fundamental right for all workers.

While the rights of both parties in the employment relationship must be taken into account, as the Commission noted in its original submission, it is the responsibility of the state to favour the vulnerable when competing rights must be balanced.

Adequate flexibility currently provided

The legislation currently allows variation of the timing of breaks (but not the minimum duration of breaks) by mutual agreement. Breaks outside the time specified in the Act are by agreement between the employee and employer. This provides considerable flexibility to ensure minimum disruption to business operations.

Lack of consultation

The explanatory note to the bill notes that the bill was prepared hastily and without adequate consultation. “Officials have advised they have concerns about developing the proposed amendments to the rest breaks and meal breaks provisions of the principal Act at speed and without adequate consultation. This may result in policy being designed and implemented with unintended

¹ International Labour Office, “Spotlight on Working Time”, World of Work No. 60, August, 2007, Geneva: International Labour Office.

² McCann, Deidre, (2005), Working time laws: A global perspective findings from the ILO’s

Conditions of Work and Employment Database, Geneva: International Labour Organisation. P34.

consequences, including unforeseen regulatory compliance impacts and

administrative costs” (p8).

Problems with current law

Furthermore, the law change has only been in force since 1^st April 2009 and it is not clear that there are significant problems with it to warrant this step. The Commission is of the view that specific exceptions should be considered rather than removal of legislative protection of a fundamental right.

The situation that has been cited by the Minister in the explanatory note to the Bill at p5, is that the legislation resulted in regional airport control towers being closed down to allow sole charge air traffic controllers to take breaks.

Failing to provide such breaks, would seem to raise significant health and safety concerns, given research that highlights the important role of regular rest breaks in reducing accidents and improving work performance. Given the highly stressful nature of the occupation and intense concentration required to do the job safely, the Commission supports the right of controllers to legislated rest breaks.

Health and safety

Measures in the bill to allow employers to provide „compensatory measures‟ instead of rest/meal breaks, also fails to adequately address health and safety considerations which are a significant rationale underlying rest and meal breaks.

In conclusion, the Commission considers that the Bill should be withdrawn. On balance, within the existing legislation, sufficient flexibility is currently available to employers while assuring employees the right to rest breaks during the working day.

Yours sincerely

Dr Judy McGregor

EEO Commissioner