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!