EMPLOYMENT RELATIONS (REST BREAKS AND MEAL BREAKS) AMENDMENT BILL

Transcription

1 4 June 2010 Chairperson Transport and Industrial Relations Select Committee Parliament Buildings WELLINGTON EMPLOYMENT RELATIONS (REST BREAKS AND MEAL BREAKS) AMENDMENT BILL This submission is from the Employers & Manufacturers Association (Northern) Inc. The Association wishes to appear before the Committee to present its submission. The Association's contact person is: David Lowe Advisory Services Manager EMA (Northern) Private Bag Grafton, Auckland Ph: Mobile: E mail: (O9) david.lowe@ema.co.nz 1. EMA (NORTHERN) EMA (Northern) welcomes the opportunity to make a submission to the Transport and Industrial Relations Select Committee on the Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill ("the Bill"). EMA (Northern) represents the interests business throughout the upper half of the North Island. EMA business members collectively employ 300,000 people. EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 1

2 A specific employer group has been established to deal with employment related legislation. This group has participated in the development of this submission. 2. AN OPPORTUNITY FOR REASONABLE BREAKS SHOULD BE PROVIDED It is agreed that employees should be provided with reasonable rest and meal breaks. What is reasonable will depend on the working pattern. What is sometimes problematic, is when the employee themselves does not wish to have these breaks and an entire operating pattern has developed around the employees' wishes. We support legislation requiring an opportunity be given for breaks to be taken. It is extremely rare that an opportunity for a break is not given. However, we acknowledge that at the Select Committee hearing on the original Bill some workers were explaining the long periods they worked without a break and while we believe those examples are rare, it was nonetheless disappointing to hear that occurred. 3. CURRENT LAW ISSUES The current law, well intentioned as it may have been, went a lot further than requiring an opportunity for breaks to be taken and has caused serious inconvenience for both employers and employees. Employers and employees had their own workable rest and meal break arrangements and they have had to change them to far less suitable arrangements. In some situations, the working periods are not long enough to warrant a meal break and employees resist changes to provide an opportunity they do not want. The consequences of the current law are that: e Some employees have had their paid hours cut to accommodate an unpaid meal break. This is usually as a result of a shop having to close its doors at a certain time or the employee needing to be elsewhere. EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 2

3 It has interfered with child care arrangements. Safety issues have arisen for clients to whom those 'safe' services are being provided. Employees and employers have agreed to ignore the law to continue current arrangements. Employers have hired lawyers to craft work a round models so they comply with the law and continue with their current arrangements. Work patterns have been changed that suit nobody, such as starting people early to incorporate a meal break the employee does not want. 4. EXAMPLES OF PROBLEMS THE CURRENT LAW IS CREATING Examples of issues the current law is posing for EMA employers are: Example 1 An employer had a parent working 5 hours. The parent chose not to take a break so they could leave in time to pick their child up from school. When the current law was introduced the parent's paid hours were cut to 4.5 so she could continue to pick the child up from school and the employer could comply with the law to provide a 30 minute unpaid meal break. The parent was offered 5 paid hours, but that meant being at work for 5.5 hours and they would not be able to pick their child up from school. Example 2 An employer has high school student's work at checkouts from typically 4pm until 9pm. The doors to the shop close at 9pm sharp. Giving them a half hour unpaid break was resisted by the employees because all they saw was that they were getting 30 minutes less of pay, so the typical response was 'l don't need the break, I'll just work right through'. The employer either had to reduce the working hours of staff for a meal break that was unwanted or ignore the law. Example 3 A company had a weigh bridge for its trucks in the middle of the forest. One employee worked that weigh bridge for eight hours. Often no trucks would be weighed for several hours and then there would be a busy period. Some days were busy and trucks needed to be weighed regularly. It was impossible to tell when the employee would have an uninterrupted 30 minute period for a meal break. The employer and employee decided to use common sense as they had done for many years and leave the employee to take breaks as they could. That exposed the employer to a breach of this law on the days there was no uninterrupted 30 minute period, but there was no other workable solution. EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 3

4 EMAM Example 4 A group of employees worked 5 hours a day and had workable arrangements of a 10 minute rest break. When the current law was introduced, the employer gave employees the following options via a letter. Dear RE: Minimum Breaks As discussed with you, the law has changed with regards to how meal breaks and rest periods need to be dealt with. Currently you are working a 5 hour shift with a 10 minute paid rest period and no unpaid meal break. With the change in legislation, we see the following options as being available to us to agree. Option 1 period. Option 2 You reduce to a 4 hour shift with the 10 minute paid rest We increase your shift to a 5 hour 30 minute shift and agree that your unpaid meal break is in the last 30 minutes of your shift. This would enable you to leave at the same time as now and retain your 5 hours pay. Option 3 We provide you with a 30 minute unpaid break during your 5 hour shift. This would mean that you would be at work for the same amount of time but would receive only 4 hours 30 minutes pay. Please indicate which option you prefer below. Example 5 A telephone advice centre is open from 8am to 8pm, with employees being rostered 8 hours a day. Those who started on the 12 noon to 8pm shift were required to start at 11.30am to accommodate a meal break. The employees did not wish to havea meal break as they had their evening meal at home after work and they wanted to continue starting work at 12 noon. The employer entered into a farcical agreement stating their finishing time was 8.30pm and the last 30 minutes was their meal break. But in reality the workplace was closed and they had gone home at 8pm as they had always done. The following are extracts of issues taken from the 46,000 telephone calls EMA receives each year from employers: Example 6 "Could you please clarify for me the current position of whether an employer must timetable in a lunch break to a person who is in a sole charge office. We are a counseling agency and at one of my offices there is only the one person on the desk. She would be happy not to take the break If I ask her to sign a letter stating that would I be covered." EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 4

5 EMAMJ Example 7 On call support workers IT company working standard business hours offering on call service between 5.30pm and 5.30am on weekends and public holidays Max no. of customer per on call worker is 7 customer. Between customers the on call workers have time to do their own thing. How do we structure the break provisions into this scenario? Example 8 Home based provider, providing care to Clients within their own home. Our workers travel from Client to Client to provide care. This could be for as little as an hour per Client or several hours per Client. More often less than two hours per visit. 1. At what time do we determine the worker has worked between two and four hours etc? They often do things for themselves between Clients. Sometimes they stay at the Clients longer than the time allocated and have a cup of tea (at their own discretion). 2. We are not funded for these breaks. We have a contract to provide Client care. If we were to include the break time into the time they are there to provide care, this would disadvantage the Client. Alternatively we are not given extra funding to pay for these breaks. 3. Client Safety some care we provide is as a presence to ensure the Client is "Safe" as it is not "Safe" to leave certain Clients on their own. The worker may have a coffee or make a phone call etc, provided they keep and Client within sight or while the Client is resting/sleeping to ensure safety. 5. PROPOSED BILL The proposed Bill allows common sense to prevail while still ensuring employees have an opportunity for breaks. We support the Bill. New Zealand workplaces differ significantly and one size fits all meal and rest breaks structure is too prescriptive. Employees also have their own wishes regarding breaks that the employer will very often wish to accommodate, and the law should allow them to. Particular areas of support are: 5.1 EMA particularly points out the sensible approach taken to the timing of the breaks in Clause 69ZE. Practically, the timing of breaks has never been by agreement. Breaks are taken: EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 5

6 EMAM At the employees own discretion with the employer retaining the right to set the times if the employee is not exercising their discretion appropriately; or According to a roster when the requirements of the workplace require. In both scenarios, employee agreement has never been a feature of taking breaks and introducing the concept of agreement created workplace problems that are still unresolved in many workplaces. 5.2 EMA also particularly supports the wording that requires the provision of a reasonable opportunity for breaks but allows employees to not take their breaks if that is their choice. An employer does not wish to be in a position of requiring people to take breaks they do not want. 1 CLARIFICATION Clause 69ZD(3) makes it clear that rest breaks are paid, but is silent in respect of meal breaks. The fact the law is silent on the issue that meal breaks are unpaid raises a concern this law could be misinterpreted to mean meal breaks are also paid. We recommend the law make it clear meal breaks are unpaid. 7. RECOMMENDATION The EMA recommends the Bill proceed with clarification that rest breaks are paid and meal breaks are unpaid. Davi'd Lowe ADVISORY S MANAGER EMA Northern: Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 6