Wilkinson Kate: Employment Relations (Breaks and Infant Feeding) Amendment Bill — Second Reading 
Wilkinson Kate: Employment Relations (Breaks and Infant Feeding) Amendment Bill — Second Reading 
[Volume:649;Page:17855] 
KATE WILKINSON (National) 
: 
 The Employment Relations (Breaks and Infant Feeding) Amendment Bill should be a relatively uncontroversial matter. Of course employees should be given meal and tea breaks and by all accounts common sense prevails and this does happen. It is interesting though that this bill has been drafted with two relatively separate and discrete issues. The first is to deal with meal and rest breaks which most thought were already enshrined in law and arguably are enshrined in the health and safety legislation but this is for the avoidance of doubt; despite the fact this bill is not necessarily needed if it merely codifies what is already happening in workplaces then it should be relatively uncontroversial. Secondly the bill deals with the requirement for the employer to provide breastfeeding breaks and facilities. 
When asked why both these matters were contained in the one bill one Government member of the Transport and Industrial Relations Committee offered the response that it was to make it politically difficult for National. There was nothing at all in that member’s response about whether the bill was needed nothing at all about what evidence-based research had been done to establish whether in fact there was a problem—it was merely to try to make it politically difficult for us. There was no evidence of a problem no regulatory impact statement just the comment that the Government would love National to vote against the bill and the Government would therefore be able to say that National is against giving meal breaks to workers. We are not against giving meal breaks to workers. Although we are not entirely happy with the bill we will be supporting it but we will be looking at some practical amendments to it at the Committee stage. 
Submitters on the bill and in particular I refer to the submissions of the Employers and Manufacturers Association noted that 95 percent of employers provide paid rest breaks of 10 minutes or longer and 99 percent of employers provide unpaid meal breaks of 30 minutes or longer. Many considered the bill to be “unnecessary”. They said that it purports to address matters that already happen and are covered in employment agreements that are consistent within the scope of the existing good-faith negotiation framework and that the terms are prescriptive allowing for little or no account of long-established work practices or necessary workplace flexibility. 
It is interesting that one of the comments in the explanatory note stated: “These amendments however are consistent with the majority of active collective agreements so would be expected to support current practice and not require a significant change to current workplace practices in most instances. They would also provide a minimum code to support provision of breaks in those sectors or workplaces where provisions may be light or restricted and where vulnerable workers are like to be present.” However as one submitter duly noted in the private sector collective bargaining coverage is about 10 percent although it is about 22 percent when taking the public sector into account and therefore using existing collective arrangements to all employers may be seen at least statistically as the tail wagging the dog. The explanatory note further notes; “There is a risk that legislating for rest and meal breaks will be seen as reducing workplace flexibility. A legislative approach also presents a risk in sectors and industries where rest and meal breaks of specified duration and frequency are incompatible with business operations.” 
Some submitters in some sectors including transport hospitality tourism and retail expressed concern that the nature of their business precluded the suitability of an overly prescriptive meal break regime. Flexibility is required. A mountain guide halfway up a mountain cannot take a break just because the law prescribes it even though it is impractical for the break to be taken precisely at that moment. A waiter at a restaurant who was in the midst of serving customers would not take a break or indeed want to take a break precisely as prescribed in the law. Waiters take their break when it is convenient. They work it out with common sense and communication with their employer and there is no problem. 
The major issue raised in relation to meal breaks and rest breaks was not the provision of these breaks but the prescriptive nature of the timing of the breaks. Although one of the union submitters attempted to suggest that the old awards were much more prescriptive this proved to be a fallacy. For example in the old tearooms award it is specifically stated that breaks are taken “at a time convenient to the employer”. It is not the same as “by agreement”; it is not the same as this bill prescribes and neither is it the same as “reasonable and practicable”. Admittedly at select committee the bill was amended in an attempt to make it less prescriptive—less “one size fits all”—by providing that the timing of rest and meal breaks is to be agreed between the employer and the employee. It is only in the event that agreement cannot be reached that the default provisions apply—namely one 10-minute paid break if an employee’s work period is 2 hours or more but not more than 4 hours; one 10-minute paid break and one 30-minute unpaid meal break if the employee’s work period is more than 4 hours and not more than 6 hours; and two 10-minute paid breaks and one 30-minute unpaid meal break if the employee’s work period is more than 6 hours but not more than 8 hours. This bill is still not the perfect solution but it is an improvement; it at least acknowledges the ability of the employer and the employee to reach an agreement. 
Underlying this legislation is the notion of what is reasonable and practicable and concern was certainly expressed by many of the submitters as to what exactly this would mean and what it would entail to test it—yet another process no doubt for employers to have to navigate their way through. There is no clear definition of what is reasonable and practicable. Perhaps some direction can be gained by the similar expression contained in the health and safety legislation and it is of some—but perhaps not much—comfort that further guidance as to what this all means will be provided in a code of practice. Although a code may assist employers to determine what is reasonable and practicable in their and their employees’ particular circumstances good law requires certainty. Both workers and businesses need certainty as to what this all actually means and at the moment there is uncertainty. The proposed code will need to be drafted with a lot of thought and research—a lot more certainly than was given to this bill. 
The transport industry submitters were most concerned as to the consequences of this bill on their respective operations. Their hours of work and timing of work breaks etc. are already covered under separate subordinate legislation such as the work time and logbooks rule and maritime rules. This current bill either duplicates in some part or conflicts in some part with such industry-related rules. It should be made clear that the specific transport-related rules should prevail; if not it is clear from the submissions received that the bill as drafted risks imposing substantial additional costs on the industry—such costs of course would be passed on to the consumer. This “one-size-fits-all” legislation does not fit the transport industry. We heard from a submitter NZ Bus that the increased cost on its operations resulting from this bill would be over $9 million. 
At the moment the bill provides that such other enactment would prevail if the breaks provided under that other enactment are additional and enhanced. But again what exactly does that mean? A simple amendment that where there is other legislation—such as the logbook rules etc.—that provides for breaks then that other industry-specific rule should prevail is common sense yet it should not detrimentally affect the workers and their entitlements to proper breaks. Those rules still have to undergo the scrutiny of industry consultation and final sign-off by the Regulations Review Committee which affords protection for all concerned. The transport industry submitters wanted a specific exclusion to this bill providing for their specific regulations and rules to prevail as the preferable and more common-sense solution. 
Finally is this bill necessary? Probably not. Are meal breaks and rest breaks necessary? Without a doubt. This bill is another drop in the dripping tap of employment legislation that imposes more and more regulation and compliance on employers when there is no real evidence from research showing that there is indeed a problem. National endorses the need for certainty in legislation and for proper protections to ensure that workers have proper meal breaks and tea breaks etc. It does not endorse unnecessary legislation but it does support these protections for workers. Therefore we are supporting the bill which we hope will include the amendments I have mentioned earlier.