Wednesday, October 28, 2009

The Ghost of Blackball ?

Readers with an historical bent will recall that the catalyst for the Blackball Strike in 1908 was the insistence of the mine owners on 15 minutes crib time rather than the customary half hour. Miners were expected to eat where they worked and not even move to a ventilation shaft. At the subsequent prosecution it was reported that the judge, after remarking that 15 minutes was ample for crib, adjourned the Court for an hour and a half lunch break. The introduction of the Government’s Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill yesterday provides a useful reminder of these events and of that mind-set.

The Bill is intended to repeal the current provisions in sections 69ZD and 69ZB of the Act which require regular meal and rest breaks to be provided throughout a work period. The current law provides for 10 minute paid rest breaks and a 30 minute meal break to be provided “so far as is reasonable and practical” at regular intervals throughout the work period. The proposed amendments remove these clear entitlements and substitute a very open-ended “flexible” regime that provides for breaks at times that may be agreed but in the absence of agreement are able to be determined by the employer. The amendment will give employers much greater control over what an employee may do during a break. It clearly envisages that breaks may be interrupted and that they can be required to be taken in a place specified by the employer. Indeed one provision allows the employer to deny breaks completely by substituting “compensatory measures” that might include earlier start or finish times or accumulated time off on an other occasion.

The rationale for this Bill is unclear given that the existing provisions provide adequate flexibility. According to the Bill’s statement of “Status quo and problem” the change is driven by a concern that the present law is inflexible although no evidence is produced to justify this statement other than some conjecture that some regional airport towers may be forced to close to enable breaks to be taken. Although some publicity was generated about this claim a few months ago it appeared to be more smoke than fire and the statement ignores the “reasonable and practical” requirements of the current law. It is notable that the Minister did not feel the need to consult either Business NZ or the CTU on this measure and that officials have indicated concern about “developing the proposed amendments…at speed and without adequate consultation.”

The current law on rest and meal breaks is flexible while providing a clear principle of regular and fixed breaks during the working day. The amendments are likely to have the effect allowing employers to avoid such breaks and substitute practices such as “working breaks” where smoko or a meal is continuously interrupted so that no clear break is ever provided. Workplace health and safety and a productive work environment are promoted by regular rest breaks that combat fatigue and boredom. This Bill promotes none of these. It seems to be driven less by need than a desire to make a narrow ideological point about employer "rights" and smacks of Muldoonist micro-legislation.

The Bill including the Explantory Note can be viewed at:

Tuesday, October 27, 2009

Why an Employment Law Blog?

Employment law reform appears to be in the wind. Possibly not yet a full Wellington gale but at least a small zephyr was created by the Prime Minister's speech at the CTU conference on 21 October. John Key, spoke of possible reforms to New Zealand employment law including "the potential abuse and costly nature of personal grievances processes."

The Prime Minister's speech can be viewed at:

Employment law matters affect all New Zealanders and reforms should be debated. This blog has been created as a vehicle for such a debate. Contributions will be invited from a range of commentators with a range of views and (moderated) comments will be welcome.

Feel welcome to contribute

Gordon Anderson