Employer Control Over Unpaid Breaks in New Zealand
In New Zealand, an employer's ability to dictate an employee's activities during an unpaid break is generally limited. Unpaid breaks are typically considered an employee's time away from work, intended for rest and refreshment.
Understanding Unpaid Breaks
The Holidays Act 2003 outlines an employee's entitlement to rest and meal breaks [Source: Holidays Act 2003, s 11A]. A meal break is typically an unpaid period of time provided for an employee to eat and rest, and it is usually not counted as working time [Source: Holidays Act 2003, s 11B(2)]. Conversely, rest breaks are generally paid and counted as working time [Source: Holidays Act 2003, s 11B(1)].
During a meal break, an employee must not be required to perform work [Source: Holidays Act 2003, s 11C(1)]. This means the employee is generally free from the employer's direct control regarding their personal activities.
Employee Freedom During Unpaid Breaks
When an employee is on an unpaid meal break, they are typically considered to be 'off duty'. This means that, provided their actions do not unreasonably interfere with the employer's business operations, breach reasonable workplace policies, or pose a health and safety risk, an employee is generally free to use their time as they choose. This freedom extends to personal activities such as leaving the workplace premises, making personal phone calls, or engaging in leisure activities.
Limits on Employer Control: Good Faith and Reasonable Conduct
While employees have considerable freedom during unpaid breaks, employers are still bound by the principles of good faith as set out in the Employment Relations Act 2000. Good faith means acting honestly, openly, and without misleading or deceiving each other [Source: Employment Relations Act 2000, s 4]. Any employer directive regarding an employee's conduct during an unpaid break must be reasonable and consistent with this obligation.
Employers may have general workplace policies that apply to all employees on their premises, whether on break or not. Examples include policies relating to health and safety, drug and alcohol use, or general conduct. However, these policies should not typically dictate personal activities during an unpaid break to the extent that it undermines the break's purpose as a period of rest and refreshment.
When a Break Becomes Work
If an employer imposes significant restrictions on an employee's activities during an unpaid break, or requires them to be 'on call' or available for work, the nature of the break may change. In such cases, it could be argued that the employee is not truly free from work duties, and the break should therefore be considered working time and paid accordingly [Source: Holidays Act 2003, s 11C]. Excessive control over personal activities during an unpaid break could also be seen as a breach of the employer's good faith obligations.
Dispute Resolution
If an employee believes that their employer is unreasonably dictating their activities during an unpaid break, or has breached their employment agreement or statutory entitlements, they may be able to raise a personal grievance. A personal grievance is a claim by an employee against an employer regarding their employment, which may include claims of unjustifiable disadvantage [Source: Employment Relations Act 2000, s 103].
When to Seek Independent Legal Advice
Individuals seeking to understand their specific rights and obligations regarding employment matters, or who believe their employer's conduct is unreasonable, should consider seeking independent legal advice. Information and assistance can be obtained from official bodies such as Employment New Zealand, or from a Community Law Centre.