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Employment Law

30 Mar 2009

The Return of "Smoko" and Other Breaks

Employers need to be prepared for amendments to the Employment Relations Act that come into force on 1 April 2009. These amendments relate to the implementation of statutory rest and meal breaks and requests from staff to feed infants in the workplace.

Statutory Rest and Meal Breaks

Many employers already provide for rest and meal breaks in their employment agreements or many workplaces have flexible arrangements or informal policies on breaks that meet the needs of their staff. However, from 1 April 2009, employers must provide employees with paid rest breaks and unpaid meal breaks. Which means employers should review any existing arrangements or rosters to ensure they comply with the new law.

Employees will be entitled to:

one paid 10 minute rest break when working for between two and four hours;
one paid 10 minute rest break and one unpaid 30 minute meal break when working between four and six hours; and
two paid 10 minute rest breaks, and one unpaid 30 minute meal break when working between six and eight hours.

These entitlements effectively re-start after the eighth hour of continuous work.

Employers and employees can discuss and agree when breaks will be taken, how work will be managed during breaks and they are free to agree to observe the breaks outside the specified timeframes above. If no agreement is reached, breaks must be evenly spaced throughout the work period (as detailed in the legislation), as far as is reasonably practicable. What constitutes 'reasonably practicable' remains to be seen.

This legislation applies to all employees other than those, such as truck drivers, who have rest provisions pursuant to alternative legislation.

Infant Feeding

From 1 April 2009, an employer must ensure, as far as reasonably practicable in the "circumstances", that facilities and unpaid breaks are provided for an employee who wishes to breastfeed or express milk at work. The length and frequency of breaks are to be negotiated between employer and employee. "Circumstances" include the operational environment and resources, so smaller employers may be subject to less onerous obligations than larger organisations. These breaks are in addition to the entitlement to rest and meal breaks, and an employer's code of practice in relation to these breaks is scheduled for release in July.

Penalties and/or compliance orders may result from non-compliance.

Compliance with the infant feeding provisions will, for most employers, be reasonably straightforward. However, compliance with the rest and meal breaks provisions may raise issues for some employers - for example those businesses that roster staff on sole charge arrangements or have constantly running machinery or other operational requirements.

Please contact us if we can assist you and your business with this change in legislation.