The black and white of paid breaks

The question of whether all employees are entitled to paid rest and meal breaks has received unambiguous clarification in a recent ERA determination.

The black and white of paid breaks

The question of whether all employees are entitled to paid rest and meal breaks has received unambiguous clarification in a recent Employment Relations Authority (ERA) determination.

This case involved a discrepancy between the collective agreement between General Distributors and its employees, and section 69ZD of the Employment Relations Act 2000. While the former denied boners paid rest and meal breaks, the latter stipulates that all employees must be paid rest and meal breaks.

First Union Incorporated (the Union) sought an order from the ERA that General Distributors’ boners receive paid rest and meal breaks, and that they receive back pay from 1 April 2009 (when the amendment above came into force).

The respondent, General Distributors, presented several arguments in their defence. They said that the piece rate that they paid their boners included pay for breaks, that the agreement had been freely negotiated between both parties (and had been in place for several years), and that it should not be interfered with since it complied with the spirit and intent of the legislation.

The Union’s case was much simpler. “The Union simply contends that the boners are entitled, by force of statute to paid meal breaks but are not receiving them,” as ERA member James Crichton put it. Crucially, they also put that the provisions that relate to paid rest and meal breaks in the Act could not be “contracted out” by an employment agreement (under section 238).

The decision came very easily to Crichton. “The Authority sees the matter in very simple terms. Despite its sympathy with the position of General Distributors, and the sterling efforts made on General Distributors’ behalf by its counsel to make an argument out of nothing, the position is quite clear,” he wrote. He said that the provisions in the Act were clearly mandatory and could not be varied by an employment agreement. He granted both of the Union’s orders.

Key HR Takeway:

 

  • Section 69ZD of the Employment Relations Act 2000 stipulates that employees must be provided with paid rest and meal breaks.
  • These provisions cannot be “contracted out” in an employment agreement, according to section 238 of the same Act.

 

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