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Guest post - Date published:
2:00 pm, September 28th, 2014 - 53 comments
Categories: national, same old national, Unions, workers' rights -
Tags: rest breaks, simon bridges
Yet another election, yet another National victory. Despite all the scandalous allegations (some proven) levelled at the incumbent, the King of Teflon reigns yet again. John Key must be secretly grateful to the big gabbling marshmallow from Germany for poisoning the left and for taking a fair bit of oxygen out of seemingly robust, progressive, independently costed and cogent policies. According to the “unbiased” media, Labour appears to be stuck in squabbling mode yet again. In saying that, the moves made by Cunliffe on election night to rally the wider party membership to endorse his leadership does himself no favours as it reeks of self-importance. A concerned leader will be more focussed about addressing the issues in the wider labour movement or what is left of it?
I digress, this article is not about Labour’s naval gazing exercise.
Now that the dust is settled, certainly amongst the Nats, it is now back to the business of passing legislation. An academic acquaintance mentioned in passing about the revisiting of a bill that was put on hold before the elections and now would be revisited again when the house sits in October.
Judging by the recent statements put forward from the caretaker government about not rocking the boat; and continuing with their raft of legislative amendments in the past six years to make New Zealand a “fairer” and “happier” working place, one of the bills that will most likely see early light of day could be the Employment Relations Amendment Bill.
There are a raft of changes that will mostly be implemented in its current form seeing the caretaker government has a majority. A significant number of them is a cause for concern for employees and I will attempt to discuss them at a later post. For now, I would like to primarily comment on two aspects of the bill – Flexible working arrangements and Rest and meal breaks.
Flexible work arrangements
I’m all for work life balance and the import of flexible work arrangements appears to be a step in the right direction and would be very appealing to a cohort of would be part time workers/part time workers, especially mums returning to the workforce after starting a family where flexibility is key to running a young and often discombobulated household; or employees who choose to go part time as they wish to engage with other aspects of the community through volunteering, etc.
Flexible working arrangements
Clauses 20 to 27 would extend the right to request flexible working arrangements to all employees, not just those with caring responsibilities as is currently the case. The bill would remove the current limits on the number or timing of such requests, and would shorten the period in which an employer must respond to a request. We support the proposed changes as a means of promoting the benefits of flexible working arrangements, which we believe are of value for both employers and employees, allowing productivity gains and a better work-life balance.
For consistency, since an employee’s request must be given in writing, we recommend amending clause 24, new section 69AAE, to require an employer’s response also to be given in writing. If the request was refused, the employer would also be required to state and explain the reason for the refusal.
The above, in my view – is a case of where less is more in terms of prescription. I believe it is really beneficial to employees who want to and need to set other priorities in their lives apart from being married to their job. We all have different drivers and a one size fits all prescription is not necessarily the way to go.
Rest and meal breaks
However, there is a rather onerous provision in place that needs to be discussed. This provision deals with the relaxation of prescribed breaks, in particular the provisions that relate to meal and rest breaks.
The explanatory notes in the bill states,
rest break and meal break provisions, to reduce prescription and allow for flexibility, including compensatory measures where there is a failure to provide a break
On the face of it, this does not seem to be an overtly onerous provision as it allows for less prescription and we all like to have less rigidity in our lives right?
The commentary section of the bill provides a little more insight into the machinations of this seemingly harmless amendment. (authors underlines)
Rest and meal breaks
Clauses 43 to 46 of the bill would change the existing rules for employees’ entitlements to rest and meal breaks. The aim is to move from a prescriptive to a more flexible approach, encouraging employers and employees to negotiate in good faith about workable arrangements as to how and when breaks should be taken. The changes proposed would require an employer to provide reasonable compensatory measures where an employee could not reasonably be provided with breaks.
We are aware of considerable concern about these provisions, particularly about the possible impact on employees’ health and safety if breaks are restricted. We have considered these issues carefully. The majority of us consider two points to be particularly relevant. First, the bill would not override any requirements under other legislation. For example, specific regulations governing hours of work for drivers of passenger transport services, and—importantly—the general duty imposed on employers under the Health and Safety in Employment Act 1992, would be unaffected by the provisions in question. Section 6 of that Act imposes a general duty on employers to take all practicable steps to ensure the safety of employees at work, including providing and maintaining a safe work environment.
An employer’s responsibility under that Act for controlling hazards extends to any person’s behaviour resulting from physical or mental fatigue that might be an actual or potential source of harm to themselves or others. Providing breaks, or varying the nature or intensity of work, would remain obvious ways for an employer to address such hazards, regardless of the changes proposed in the bill.
A second important consideration is the reasonableness test in these clauses. Clause 44, new section 69ZD(2), specifies that any restriction of rest or meal breaks must be reasonable and necessary, having regard to the nature of the employee’s work. If breaks were not provided, a reasonable compensatory measure must be provided (new section 69ZEB).
The majority of us consider that these factors would ensure that the bill met the policy intent of improving workplace flexibility, while continuing to protect the rights of employees. Accordingly, we are not recommending any amendment of these provisions.”
Apart from the status quo remaining for employees who operate heavy machinery, the changes though small are significant. Let’s dissect these paragraphs into its component parts and do a vis-à-vis with what is currently stipulated in the current Employment Relations Act 2000.
Clause 43 of the Bill replaces Section 69ZC of the Act
The main difference is the introduction of the term compensatory measure which allows the employee to be compensated when breaks have not been given for any work period. The compensation is time based only and on the face of it would allow for accrual of missed breaks that can be taken at a later date/time.
Clause 44 of the Bill replaces Section 69ZD and 69ZE of the Act
Entitlement to rest and meal breaks
The current provision requires employers to provide to employees break and meal times which for a typical eight hour work day is two 10 minute paid breaks and 30 minutes unpaid meal time.
The new provision begins by stating employees are entitled to rest and meal breaks but then goes on to state that such breaks may be subject to restrictions by the employer as long as the test of reasonableness has been met.
Timing as to when an employer provides rest and meal breaks
The current provision states that in a typical eight hour work day, there needs to be a minimum of a 30 minute meal break halfway through the work period; and a 10 minute rest break halfway between the start of the work period and the meal break; and after the meal break till the time the work period concludes.
The new provision does away with any prescribed timing for the rest and meal breaks. It is also silent on the duration of a paid break or an unpaid meal break and states it is up to the employer and employee to negotiate such outcomes in good faith.
Clause 45 of the Bill replaces Section 69ZF of the Act
The current provision allows for the Employment Relations Authority (ERA) to impose penalties on the employer should the ERA rule that the employer has failed to discharge their obligations under the Act, by not providing an employee their rest and meal breaks.
The new provision does away with this avenue for the ERA to impose penalties whatsoever if such breaches occur.
Clause 46 of the Bill replaces 69ZG and 69ZH of the Act
The current provision allows for the employer to provide additional or enhanced rest or meal breaks above the minimum legal requirement and overrides any attempts by the employer to include provisions in the contract to provide rest or meal breaks below the bare minimum legal requirement; and should the latter occur, it will not result in the contract being declared null and void.
The new provision also allows for the employer to provide additional or enhanced rest or meal breaks but there is no prescribed minimum legal requirement in this instance. It merely restates the fact that the employer must provide some form of a rest or meal break and if unable to, must provide some form of compensatory measure.
In summary, the rest and meal break changes when viewed in its entirety, basically strips away the basic legal protections for employees as far as rest and meal breaks are concerned. The lack of prescription does create an unwanted degree of haziness as it will be entirely up to the employer’s discretion as to how and when these rest or meal breaks occur with no minimum legal requirement stipulated.
Rest and meal breaks have been reduced to some sort of abstract and arbitrary animal where one’s entitlement to such basic necessities are founded on the test for reasonableness and one’s own ability to negotiate for good outcomes.
The part of the bill that does away with the ERA’s ability to impose penalties on employers who fail to discharge their obligations under the current Act is particularly worrying and disingenuous at best. It is a strong signal for unscrupulous employers to do what they want with rest and meal breaks with no impunity.
What does this mean for employees?
In my opinion, well-educated employees in relatively senior white collar positions stand to lose the least with these raft of changes as they will likely be in a position of strength to bargain for additional or enhanced rest or meal breaks. This may be due to having the wherewithal to negotiate for better outcomes because they are better equipped and more cognisant of their rights; and they possess “sort-after-skills” to leverage of. Having said that, there will in time be a likelihood of mission creep and this could manifest itself in trading away or compromising remuneration negotiations as the enhanced or additional rest or meal breaks can be used as a bargaining tool for employers to under pay.
The employees who are most likely to be significantly impacted by these raft of changes, including the other provisions to knee cap collective bargaining, will be (you guessed it!) – the low paid and casualised workforce. The less skilled, unskilled and casualised workforce have minimal ability to negotiate for better terms and conditions as it currently stands and these changes merely seek to destabilise and erode those rights further. These employees will be at the whim of unscrupulous employers who will only be required by law to provide some semblance of a meal or rest break as there will no longer be a basic prescribed legal requirement in terms of timing and duration. Even in cases where breaches occur, the employment relations authority will no longer be able to impose penalties upon the offending employer.
There are other aspects of the bill I would like to comment on in more detail as time permits but when viewed collectively, most of these changes effectively puts the boot in employees and is clearly targeted at those employees who are most vulnerable – eg hospitality, retail, cleaning, aged care sectors.
This bill reinforces the Nat’s slow and steady but effective chipping away of employee’s rights and will really resonate with its core constituency – “Business as usual” indeed!
JAmooches
The current rise of populism challenges the way we think about people’s relationship to the economy.We seem to be entering an era of populism, in which leadership in a democracy is based on preferences of the population which do not seem entirely rational nor serving their longer interests. ...
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Perhaps a video of a slave galley rowing furiously across the water, with the national party flag flying and a droll commentary.
[lprent: Ummm. ]
This is bollocks. It’s ridiculous that any of these things are governed by legislation. I’ve never had a standard 8 hour work day, and I’ve never had organised breaks and meal times. I have always been able to take whatever breaks i need, and eat my meals when it suits me. Get the government completely out of running my day
You can give back the free education we wasted on you while you’re at it.
I agree that it’s ridiculous that some employers treat their workforce like shit and have utterly unreasonable expectations. That’s why we had to legislate. If you must whinge and whine about it why don’t you direct your ire where the problem is?
You mean that free education that is pretty much mandatory. Take out English and the social skills learnt at lunchtime and the rest really has bugger all use once you get out into the real world. Free education or indoctrination into a seriously flawed system. I’m not sure which is the more fitting description although I lean towards the latter.
perhaps I am being a little harsh though. I did enjoy sports, 4 square and the school camps too.
Of course the stuff you really want to learn is the stuff you have to pay for and doesn’t start until you leave school. That said in the information age it could all be provided for free (with a little work) on the internet.
Your limited experience has offered you limited insight.
I doubt there are any for whom every lesson is relevant, just as every lesson is relevant to some.
PS: you are confused. The indoctrination centres are called Madrassa in some countries, in New Zealand we refer to them as Charter Schools.
The management class has been able to run their own work day. NZ Judges have aborted trails when it clashed with their travel plans
How would that work out if you were running a retail shop or most workplaces that have a clock punch system
better question, do you have any idea of how the real world works, other than head space that says Im the most important person in the world.
My wife works retail. They don’t take standard breaks, they have theirs during the less busy times, so not to leave reduced staff when they are flat out.
This is how us in the working world work. By getting the job done.
😆 You’re a laughing stock and you don’t even know it, little serf. Pull the wagon harder, donkey 😆
Oh, by the way, this is coming from someone who works in the private sector, only we (my colleagues & I) work smart, and ridicule the fifty hour week fools.
Cheers 😆
The old man always reckoned if you can’t earn a living in forty hours you’re deluded if you think you’ll be able to earn one working fifty hours.
The old man was right. Four waged slaves working fifty hours each steal one whole job from another worker.
As a child of the great depression he was always right about work, leisure – work five days for money and one day for your family keeping the other as your very own, and money – four for your family and one [days wages] for yourself.
I have always been able to take whatever breaks i need, and eat my meals when it suits me….
Of course, it’s all about narcissists like you, innit? Stick to truck driving.
Even gives an opinion and you go straight to attacking him personally.
Maybe get a job, it will enhance you with perspective.
[lprent: Her comment was valid, sarcastic, picked a profession where the practice does happen, and well within the robust rule.
Your comment was not. It was a classic troll comment. Play the victim and then abuse the person you are replying to. With overtones about how others should act (which is our purview).
Banned 2 weeks as a warning not to try troll tactics here ]
lolz at the hypocrite.
Not just a hypocrite: clearly in need of remedial English comprehension, telling a worker to get a job 😆
http://en.wikipedia.org/wiki/Narcissism
Feel this is not evident in his post and therefore it might be a bit mean to call him that.
Evan I also work a 12 hour day for one of the largest companies in NZ, I take my breaks when I get time or when it suits me, for as long as I like. I may at times work up to 5 hours without a break but to compensate me I am paid for all of my meal breaks.
I cant see anything wrong with these flexible rules. Lefties are a paranoid bunch who want to live in the 70’s.
😆
Righties are a delusional bunch who want to live the the 19th Century. Your whole life has been enabled by the rights you blindly seek to destroy. I’ll be waiting behind the barn with the axe when you wake up.
Many of us who are neither Right nor Left just simply want to be able to live free. Truly free.
Key words
‘ I get time or when it suits me, for as long as I like
You have the option.
Will all get that option?
The rules aren’t there for good employers. They are there for bad employers to express a minimum standard. You don’t have to look hard to find lousy employers.
I tend not to have lousy employers for very long. Firstly I try not to get employed by them. But I fire them them when I find I have made a mistake. But I also have a lot of hard to find skills.
You better get paid well for that skill set Iprent or I’ll slap you.
And yes, our labour laws have always been about the bad employers and every time we weaken them , we seem to get more bad employers. It’s like some bad Dickens nightmare played over and over.
You can thank the Dairy Workers Union for your excellent terms and conditions. Now that the arse has fallen out the milk powder market your lot are going to have to earn your membership by getting proactive and standing up to the attack by the Tories.
It’s ridiculous that so many of our employers need minimum employment standards to be enforced by legislation. If you don’t want the government in your day, bugger off to Galt’s Gulch in Chile. That worked out really well as a libertarian paradise.
So I take it you work Christmas Day and Easter Sunday then?
I can feel a series of bumper stickers coming on. the first being
LOST YOUR SMOKO? Don’t blame me I didnt vote National.
This is just really confirming, what most workplaces do.
We, in the dairy industry have always organised breaks around keeping our machines running.
Is no reason to freak out.
Why do they need to change the laws ?
Seems like flexibility is there all ready.
Meanwhile, in New Zealand…
21st Sept 2014.
JeffRo, this may come as a shock: everyone’s circumstances are different to yours: when you indulge your stupidity and rest an argument on the basis of nothing but your limited experience, you say something about yourself, and nothing valid or cogent whatsoever.
No it’s not me.
All stated here is opinion, as is mine.
Difference between you and me is, I can accept someone may have a different opinion to me. I will just restate mine or try to enhance.
You there, don’t really handle that well.
But that’s OK.
PS- I have worked in lots of different fields of industry.
[lprent: That other people may have an opinion that is different from yours has not been apparent to me. You usually seem to drop immediately to abuse, and then whine when others call you on it. Just another dumb hypocritical troll. Guess what. The moderators make the rules about behavior. Not you. ]
When did you get the impression that you have a right to hold false beliefs and not incur ridicule for them?
You’ll find that parroting right wing lies brings out hostility in far more than I, and at least I’ll use ridicule rather than pitchforks.
Debating doesn’t require ridicule. You can correct someone for false beliefs and not be nasty. It really is possible! In addition, sometimes there is grey where you may be certain the belief is false but others disagree with you. Therefore, debate is generally one of the best ways of dealing with false beliefs.
Yes, I wish it were so. In reality, contradictory facts harden false beliefs. Research aimed at treating racism, for example, has found emotional approaches far more effective than factual ones.
The tendency for right wingers to be drawn from the ranks of the fearful, lower-IQ portion of the electorate (citations: Hodson & Busseri, Kanai et al) renders fact-based argument more-or-less pointless.
Aristotle figured it out long before the evidence was available: ridicule works. I’ll allow that I may be incompetent in its application, and at least I’m trying.
The section you write about meal and rest breaks already happens in my work place. You never see our boss, Except for 5 minutes before each break where he holds you up as long as he can. Then he often stands there telling you to make another cut on the lathe or some other needless thing uses all my smoko and I don’t get one. He does not compensate me for my loss of break saying he already pays me for it.
He lists my holidays on my pay slip in a monerary manner so I have no idea how many days holidays I get, Quite frankly this cock is pissed he has to pay a wage in the first place, I’ve had to walk out on him to get a freaking decent wage rise.
I agree most places are not like this, but heck I definitely will lose smoke and as he already pays me for it I may as well work it instead mentality.
Don’t tell me to look for another job either, their are none in this small town in nowhere NZ. Got me by the balls and he knows it. He pushed me so far I walked out twice, still comes back though, at least last time I got a 2.25 pay rise which shut my moaning up for awhile still 16.75 for a engineering co is pretty sad, when two up the road are paying 23.50 but lay off to often on the downturn. Fark 16.75 tough to do that when your getting burned and cut daily. Living wage ,pray for a living wage. pray the prick doesn’t take the labour reforms to seriously It’ll be embarrassing for him the day he tells us all no more morning or afternoon smoko.
At the end of the day we are all human and can only be pushed so far, we may not have unions anymore but individually we will still cause workforce pandemonium with mass quits happening.
“Don’t tell me to look for another job either, their are none in this small town in nowhere NZ”
..
“still 16.75 for a engineering co is pretty sad, when two up the road are paying 23.50 ”
Ok…
scary, : if your my boss I luv you.
That sounds awful, Richard, I’m sorry to hear you have a boss with such an awful attitude toward his workers.
Sadly, this doesn’t sound terribly unfamiliar. 🙁
It is great when bosses and employees realize that mutual respect is absolutely vital for good working conditions and that many other positive things accrue from such – not least on that list is a happy and contented work environment.
Blue, I’ve had a few jobs in my life, never seen a boss like him. ever. He leaves my jaw gob smacked at times.
The most valuable thing we each have is time, and he steals mine daily.
I’m pretty reasonable in the work place, at one company I never had any breaks and could eat on the fly, didn’t bother me. Doing heavy work I want and need a break after two hours and if you saw the labour we do you would agree. To make me do unpaid extra’s after supposedly finishing for the day re lockup and timesheets is bloody rude.
If they remove these laws protecting the employee’s, we will create issues for people who have no consideration to the consequences of their actions. psychopaths, Nat supporters, most business owners .. 🙂
We need to band the country and strike. It’s a matter of crossed lines. It’s time they got back behind theirs.
Has he got people queuing up to take your job?
Well BM the only thing I have going for me is I work hard, I’m keen, I learn fast.
On the downside I talk to much, wander off on a tangent occasionally, as in start fixing faults with the lathe.
I like the work, no I love the work, I just think the remuneration is piss poor. The owner has the personal management skills of a concentration camp guard, and that in all the corporates I ever worked for they had relaxed work atmosphere’s their was more productivity then in a workforce where the bosses ride the workers for maximum output.
just in the maintenance of the equipment their is less downtime, people in good work environments proactively take care of their work equipment.
Personally from experience working in several countries with different cultures a unstressed workplace is the happiest and most productive. time they all learned that valuable lesson.
We don’t need more rules or more legislation we will all work with good employers in whatever they ask they know it damn it. This law serves one purpose, forcing us to comply to bad employers, removing our right to jkeep bad employers from taking the piss.
That’s the mint sauce for the sheep right there.
Better to monkeywrench or take other types of direct action before expecting help in the form of collective action. Specifically, I’d advise you to cripple your employer: demonstrate to him exactly where the power is. He’s already caved both times you took strike action.
Exactly, I don’t think Richard quite realizes the power he has.
Obviously his boss knows and really enjoys treating him like a fool.
No BM workers are a dime a dozen, I’m good, but replaceable. Don’t worry about that.
I am a good worker, he knows it that’s why it was good to see him eat humble pie drive in and work out a better pay rise and training agenda.
I have a professional career as an IT engineer, network administrator few other avenues having worked for at that time NZ’s largest NZ owned computer manufacturer. I took on a job at an engineering company to round of my skill set for my hobby Astronomy.( I can whack up the electronics also build my own mounts with metal shop training) 🙂 I have skills matey. My boss quickly found that out, now I’m machining some of the shops most difficult items.
I laugh though when his clapped old machinery, especially the CNC or plasma break down and he’s trying to repair it. I offered some help one day and he said “what would you know your just a computer engineer.” must of been bad, as repair training, systematic diagnosing , tracing and finding faults is something you can transfer to any object, I laughed internally as it’s been a year pissing around with it so far.
Fucking insult from a guy who doesn’t even know where to start looking.
Meanwhile on my own I learned pretty much the shop, from welding to almost the CNC machine if I could just get 5 minutes on that control panel 🙂
From given a recipe to final product I do it all the way through daily, so fair go mate I think, pay me what that’s worth a fitter turner would get near 30 wouldn’t he, I’d be happy with 18.80 honest, I have a mortgage, be nice to earn a living and be able to afford a better life than stay home, work just pay bills with internet and sky. I should be saving for my holidays.
What’s he charging you out at?
If he’s charging out at $70+, realistically you could go to around $25.00 an hour.
The problem for you though is that you don’t have any written qualifications which rather hampers you.
Any chance someone would fix the formatting in the post to make it easier to follow?
Done. I probably need to look at the font in the post editor. It looked ok in there on wsiwyg.
Cut and paste from a word document, which in turn had pastes from the legislative pages. *sigh*
thanks.
This has the potential to cost jobs. If say 10%of employers are bad employers, ones who take advantage of there staff. If a number of those 10% use this to reduce staff numbers due to not needing so many staff to cover those break times, lunch times etc, this will directly cost jobs. If 10 %of employees no longer have smoko or lunch breaks this indirectly cost jobs in small cafes, coffee shops etc. This will also have an direct impact on other service businesses, such as doctors, hairdressers etc as a number of employees are no longer able use lunch breaks to visit the gp or hairdresser. And before those trolls say this wont happen, get in the real world, there are huge numbers of small business owners who exploit there staff and get away with it.
Its a shame that there are still pricks employing people in this country that are so bad govt needs to legislate reasonable conditions.
Whilst for some the mandatory breaks are inconvenient its hardly a sufferance compared to what will happen to some employees with few options when this amendment passes.
This change is a mistake…
Join a union and tell your workmates to join.
I belong to a strong union. They don’t mess with us.
We’re happy and they’re happy.
I would have enjoyed your analysis more, except for the curlish start you made to this blog. The rest was OK, but I could not get out of my head you went for a cheap shots JAmooches. That really did mess with the message.
Unions are the answer – but this will undercut them more.
My guess is with zero hour contracts and more anti-union legislation coming – working people in this country are about to get kicked in the guts again.
Just remember to repeat to all the RWNJ’s, that a union is nothing more than a free association of workers, looking for a better life, for them and their families.
Yep, the rubbish at the beginning about marshmallows and Labour looking at ships left me cold. I almost didn’t read past that. I like reading stuff that is short(ish), succint, informative, inspiring, and stays on topic.