Employment Relations (Breaks and Infant Feeding) Amendment Bill

Again, I am delighted to stand to take a call on Part 2 of the Employment Relations (Breaks and Infant Feeding) Amendment Bill. As we have been throughout this process, National is supportive of giving meal breaks and rest breaks to workers, and National is supportive of giving breastfeeding facilities and breaks in the workplace where reasonable and practicable. I have to say that it is not without some concern, of course, because the prescriptive nature of the bill does add compliance costs to businesses.

In terms of the provision in relation to breaks, the issue that was raised at the select committee was not the duration of the meal breaks and rest breaks or the provision of the meal breaks and rest breaks; it was the prescriptive nature of the timing of those meal breaks and rest breaks. Although one of the union submitters attempted to suggest that the old awards were far more prescriptive and that this provision was far less prescriptive, that was actually proved to be false when we pointed out that the old tearooms award specifically stated that breaks were to be taken “at a time convenient to the employer”. “At a time convenient to the employer” is not the same as the wording in section 69ZE(1AA), in new Part 6D—in clause 5 of the bill—that has been agreed to by the select committee: “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 (1) to (4).” That amendment is important. It at least acknowledges the ability of the employer and the employee to reach agreement, and we will certainly be voting for it.

I signal at the outset that we will also be supporting Peter Brown’s amendment. It has particular relevance to the transport industry. The transport industry submitters were most concerned about the consequences of this bill for their respective operations. Their hours of work and the timing of their work breaks are covered under separate subordinate legislation, such as the work time and logbooks rule and the maritime rules. Mr Peter Brown’s amendment makes it clear that those specific transport-related rules would prevail. We will support that. To not support it runs the risk of there being conflicting rules, and confusion as to which rules prevail in relation to the transport industry.

There is still concern, of course, about the wording of the bill and, in particular, about what “reasonable and practicable” means, because that term is applied not just to the rest break and meal break provisions but also to the provision of breastfeeding facilities and to breastfeeding breaks. Concern has been expressed as to what “reasonable and practicable” would exactly mean and what it would entail to test it. We were given some guidance that there is some definition or indication of what “reasonable and practicable” means in health and safety legislation, but not in the Employment Relations Act itself. Perhaps that health and safety legislation can provide some guidance as to what “reasonable and practicable” means. There is also some comfort—again, not a lot of comfort—in the fact that a meaning will be provided in a code of practice that is to be drafted. One can only hope that it will be drafted with sufficient certainty and flexibility to ensure that both employees and employers understand what it means, and to ensure that it is fair. With any legislation, we have a duty to create good law. Good law requires certainty, and not just for businesses; both employees and employers need certainty as to what the wording of the legislation means and what it will entail. That proposed code will need to be drafted with a lot of thought and research.

We support this bill.

As regards the Employment Relations (Breaks and Infant Feeding) Amendment Bill, my colleague Kate Wilkinson has made some very pertinent points about it. A number of amendments take into account the views of specific industries that felt the bill did not accommodate the practicalities and the realities of how they actually do business. The transport industry was one of those whose representatives came before the Transport and Industrial Relations Committee—with special reference to the nature of the bus industry. They made it quite clear that the bill would have a detrimental effect on the way that they run their operations. I think all the members of the select committee saw some relevance and some practicality in what they were saying. The amendments put forward in that regard take into account the need to make law that is sensible, where we can do so.

But in looking at the Employment Relations (Breaks and Infant Feeding) Amendment Bill in a general sense, I think one of the big things about the meal break portion of it is to consider what it actually means for a lot of employees. A lot of employees negotiate meal breaks within their employment agreements. During the course of the select committee process, it was found that some employees would actually lose rights under this legislation proposed by a Labour Government. Many employees have better rules in regard to meal breaks than what this legislation was originally going to provide, and, in this case, still provides. We saw that in the medical field, especially with nurses, who in certain cases had negotiated much more comprehensive arrangements for their meal breaks. The legislation was going to take away some of those advantages. The select committee looked at the legislation and came to the conclusion that we needed to make sure that workers would not be in a worse position than they were in before this legislation had been proposed.

That was one of the key requirements that the select committee made some progress on, and we saw amendments made to the bill to take into account the nature of the work arrangements. Members will see that the words “so far as is reasonable and practicable in the circumstances” have been added to clause 4. That is one of the opportunities, I guess, to provide some flexibility within the legislation to take into account individual circumstances. There is a bit of debate about what the wording actually means; “reasonable” and “practicable” are quite legalistic terms, but they are common terms that are used throughout our legislation and in our courts. They open up the way for interpretation, and that should be done in a meaningful and progressive way for all concerned.

When we look at the timing of rest breaks, we see that one of the major considerations was to get those timing requirements right—not too prescriptive but not too restrictive, either. The bill needed to take into account the nature of work arrangements and also employment agreements, in the sense that some speciality of the work or the nature of it may require negotiation on the timing and the nature of rest breaks.

In essence the legislation, in trying to deal with breaks, dealt with some things one would find in normal employment arrangements. The legislation needed to account for that, and in most cases that has been done through the Supplementary Order Paper that has been put forward, or through the select committee process, which looked at the practical realities of what the legislation could provide, to make sure we had sensible legislation going forward that could provide those kinds of meal breaks in the future.

The National Party supports this legislation. Some changes have been made to it in the past couple of days that probably are not in the best interests of this Parliament.

The question was put that the following amendment in the name of Peter Brown to clause 5 be agreed to:

to add to section 69ZH the following subsection:

(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.

Amendment agreed to.

The question was put that the amendments set out on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard to Part 2 be agreed to.