Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008

1: Title
This Act is the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008.
2: Commencement
1: This Act comes into force on the day after the date on which it receives the Royal assent.
2: However, sections 6 9
1: Preliminary provisions
3: Principal Act amended
This Act amends the Employment Relations Act 2000. 2008-09-10 Employment Relations Act 2000 2009-04-01 Employment Relations Act 2000
4: Purpose
The purpose of this Act is—
a: to insert new Parts 6C and 6D into the principal Act to—
i: require facilities and breaks to be provided, so far as is reasonable and practicable in the circumstances, for employees who wish to breastfeed in the workplace or during work periods; and
ii: require employees to be provided with rest breaks and meal breaks; and
b: to make it a ground for a personal grievance for an employee's employment to be adversely affected because he or she is a member of a KiwiSaver scheme or a complying superannuation fund.
5: Application
1: The amendments made by sections 7 8
a: apply to employment agreements entered into on or after 2 September 2008; and
b: do not apply to employment agreements entered into before 2 September 2008; and
c: apply to variations of employment agreements entered into before 2 September 2008, if the variations were made on or after 2 September 2008.
2: The amendments made by sections 7 8
a: only to matters occurring on or after 2 September 2008; and
b: whether or not an employee's employment agreement was entered into before 2 September 2008.
2: Amendments to principal Act
6: New Parts 6C and 6D inserted
The following Parts are inserted after Part 6B
6C: Breastfeeding facilities and breaks
69X: Interpretation
In this Part, unless the context otherwise requires,— breastfeeding work period section 69ZC
69Y: Employer's obligation
1: An employer must ensure that, so far as is reasonable and practicable in the circumstances,—
a: appropriate facilities are provided in the workplace for an employee who is breastfeeding and who wishes to breastfeed in the workplace; and
b: appropriate breaks are provided to an employee who is breastfeeding and wishes to breastfeed during a work period.
2: For the purpose of subsection (1)(b)
3: In subsection (1) circumstances
a: the employer's operational environment; and
b: the employer's resources.
69Z: Breastfeeding breaks additional to breaks under Part 6D
1: Breastfeeding breaks provided under this Part are in addition to breaks an employee is entitled to under Part 6D
2: However, if an employee and employer agree, the same break may be taken for the purposes of this Part and Part 6D
3: To avoid doubt, a break taken for the purposes of this Part and Part 6D Part 6D
69ZA: Code of employment practice relating to employer's obligation
As soon as practicable after the commencement of this Part, the Minister must approve, under section 100A, a code of employment practice relating to an employer's obligation under section 69Y
69ZB: Penalty
An employer who does not comply with section 69Y
6D: Rest breaks and meal breaks
69ZC: Interpretation
In this Part, unless the context otherwise requires, work period
a: means the period—
i: beginning with the time when, in accordance with an employee's terms and conditions of employment, an employee starts work; and
ii: ending with the time when, in accordance with an employee's terms and conditions of employment, an employee finishes work; and
b: to avoid doubt, includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a)
69ZD: Entitlement to rest breaks and meal breaks
1: An employee is entitled to, and the employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.
2: If an employee's work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break.
3: If an employee's work period is more than 4 hours but not more than 6 hours, the employee is entitled to—
a: one 10-minute paid rest break; and
b: one 30-minute meal break.
4: If an employee's work period is more than 6 hours but not more than 8 hours, the employee is entitled to—
a: two 10-minute paid rest breaks; and
b: one 30-minute meal break.
5: If an employee's work period is more than 8 hours, the employee is entitled to—
a: the same breaks as specified in subsection (4)
b: the breaks as specified in subsections (2) and (3)
69ZE: When employer to provide rest breaks and meal breaks
1: Rest breaks and meal breaks are to be observed during an employee's work period—
a: at the times agreed between the employee and his or her employer; but
b: in the absence of such an agreement, as specified in subsections (2) to (5)
2: Where section 69ZD(2)
3: Where section 69ZD(3)
a: the rest break one-third of the way through the work period; and
b: the meal break two-thirds of the way through the work period.
4: Where section 69ZD(4)
a: the meal break in the middle of the work period; and
b: a rest break halfway between—
i: the start of work and the meal break; and
ii: the meal break and the finish of work.
5: Where section 69ZD(5) subsections (2) to (4)
69ZF: Penalty
An employer who does not comply with sections 69ZD and 69ZE
69ZG: Relationship between Part and employment agreements
1: This Part does not prevent an employer providing an employee with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.
2: An employment agreement that excludes, restricts, or reduces an employee's entitlements under section 69ZD
a: has no effect to the extent that it does so; but
b: is not an illegal contract under the Illegal Contracts Act 1970.
69ZH: Relationship between Part and other enactments
1: Where an employee is provided with, or entitled to, rest breaks or meal breaks under another enactment,—
a: this Part prevails if the breaks provided under this Part are additional or enhanced breaks:
b: the other enactment prevails if the breaks provided under the other enactment are additional or enhanced breaks.
2: Despite subsection (1), where an employee is a person who is required to take a rest break by, or under, another enactment, the requirement for a rest break defined by, or under, the other enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.
7: Personal grievance
1: Section 103(1)(g) ; or
2: Section 103(1)
h: that the employee's employment has been adversely affected because the employee is a member of a KiwiSaver scheme within the meaning of section 4 of the KiwiSaver Act 2006 or a complying superannuation fund within the meaning of section YA 1 of the Income Tax Act 2007.
8: New section 110A inserted
The following section is inserted after section 110
110A: Membership of KiwiSaver scheme or complying superannuation fund
1: For the purposes of section 103(1) (h)
a: the employee is a member of a KiwiSaver scheme within the meaning of section 4 of the KiwiSaver Act 2006 or a complying superannuation fund within the meaning of section YA 1 of the Income Tax Act 2007; and
b: the employee's employer refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills ( comparable employees
c: the reason (wholly or in part) for the employer doing any of those things is that the employee is a member of a KiwiSaver scheme or a complying superannuation fund.
2: Without limiting subsection (1)
a: the employee's salary or wages are less than the salary or wages of other comparable employees employed by the employee's employer; and
b: the reason (wholly or in part) for the situation described in paragraph (a)
3: To avoid doubt, for the purposes of subsection (2)(a)
a: do not include any amount that recognises (wholly or in part) compulsory contributions (within the meaning of section 101B(6) of the KiwiSaver Act 2006) made by the employer in relation to the employee; but
b: do include deductions made by an employer on behalf of the employee, being the employee's contributions to a KiwiSaver scheme or a complying superannuation fund.
9: Power of Authority to order compliance
Section 137(1)(a)(ii) 6C, 6D, 6B,
10: Consequential amendment to KiwiSaver Act 2006
Section 101B
5: For the avoidance of doubt,—
a: the duty of good faith described in section 4 of the Employment Relations Act 2000 always applies when parties to an employment relationship bargain for terms and conditions relating to compulsory contributions and associated matters; and
b: sections 103(1)(h) and 110A section 5 2008-09-10 KiwiSaver Act 2006