Submission by

Hospitality Association of New Zealand

to the

Transport and Industrial Relations Committee

on the

Employment Relations (Breaks and Infant Feeding) Amendment Bill

16 May 2008

Hospitality Association of New Zealand
Level 2, Radio Network House, Corner Abel Smith and Taranaki Streets
PO Box 503, Wellington
Phone: 04 385 1369
Fax: 04 384 8044
www.hanz.org.nz

Employment Relations (Breaks and Infant Feeding) Amendment Bill

Members of the Select Committee

The Hospitality Association of New Zealand represents a diverse variety of New Zealand hospitality businesses including restaurants, caf￩ bars, hotels, off-licenses, casinos and a wide array of short and long term accommodation providers.

The Association is voluntary and is funded by membership subscriptions. Our membership of 2360 plus members employ 11,610 full-time and 19,674 part time employees for a total of around 30,000 people. Approximately 83% of the Association’s members employer fewer than 15 employees. The Association asserts that this figure mirrors the wider hospitality industry.

There is also a perception that the Association speaks for and represents the interests of the hospitality industry as a whole.

The Association supports the submission on the Bill by Business New Zealand.

The Association would appreciate an opportunity to be heard before the Committee on its submission.

Bruce H Robertson
Chief Executive
Hospitality Association of New Zealand

1. Introduction

1.1. While the Association supports flexible approaches to workplace issues such as those covered in the bill as more likely to engender harmonious workplace relations as well as safe and productive workplaces, the Association does not support the Bill and recommends that it does not proceed.

1.2. The Association considers the Bill unnecessary and further considers the matters that the Bill purports to address are either already a practical reality adequately dealt with in employment agreements (breaks) or are consistent within the scope of the good faith negotiation framework presently provided by the Act, or are more effectively the subject of information and education (infant feeding).

1.3. Further, the proposed changes, (particularly in relation to rest and meal breaks) are couched in prescriptive terms that allow for little or no account of long established New Zealand workplace practices or necessary workplace flexibility.

2. Infant Feeding

2.1. There is no doubt about the benefits of breastfeeding infants, just as there is no doubt that a flexible and supportive approach to employees with children is ultimately beneficial to workplace harmony and productivity.

2.2. The Association supports this approach by employers but considers that the Bill is short on reasons why this should translate into what, in practical terms, is little more than recognition that breastfeeding is important.

2.3. The Bill provides for the provision of breastfeeding facilities and breaks for breastfeeding mothers, but does not seem to provide the same entitlements to mothers who are feeding their infant with express or commercial formulae. This is therefore likely to be seen as a form of unfairness or even discrimination by many, otherwise equally valuable, employees for whom it is necessary to infant feed. Such employees will need to fall back on arrangements negotiated with their employer, without any indication that this will be possible. This seems inconsistent with the object of the Bill and suggests that the issue requires more thought before any proposed legislation is introduced.

2.4. There is an apparent further conflict between the purpose of the bill in clause 4(a) to “require facilities and breaks to be provided for employees who wish to breastfeed in the workplace or during work periods” and the proposed new section 69Y (1) (a) that requires an employer to “ensure that, so far as is reasonable and practicable in the circumstances& appropriate facilities are provided&”. Circumstances are defined in section 69Y (3) of the Bill as including the employer’s operational environment and resources.

2.5. If it is the policy intent that the provision of facilities and breaks for breastfeeding is ultimately dependent on the decision of an employer that a request is reasonable and practicable, then enshrining a code of practice in legislation is unnecessary and already addressed in the general good faith provisions in the Act.

2.6. Further, breaks (and facilities) to infant feed are working arrangements and requests for their provision are arguably are little different to requests for changes to working hours. This being so, the penalty provision in clause 69ZB is inconsistent with the scheme of the recently enacted amendment to the Employment Relations Act in respect of flexible working arrangements. Under that scheme, penalties are restricted to a financial penalty only if an employer fails to follow the prescribed process for dealing with requests for changes to working arrangements. There is no appeal against that penalty or against an employer’s substantive decision to refuse an employee’s request. However, the proposed section 69ZB opens employers to the full scale of penalties under the Act.

2.7. In conclusion, the Association considers that the proposed Part 6C is unnecessary, unworkable and should not proceed.

3. Breaks

3.1. New Zealand has never legislated for meal breaks. Despite this, and as acknowledged by the explanatory note to the Bill, breaks are almost universally provided for in collective agreements and are also widely incorporated into individual agreements, in Health and Safety guidelines for employers and work especially well as a matter of custom and practice.

3.2. Further, the explanatory note to the Bill is again devoid of any evidentially based explanation as to the need for legislated provisions in respect of breaks.

3.3. Indeed, the Association represents approximately 2360 employers employing in excess of 30,000 workers. As part of its advisory service to the hospitality industry the Association prepares a template individual employment agreement as well as represents members in collective bargaining. The HANZ Individual employment agreement, and where applicable collective agreements, provide for break entitlements as per or more permissible than that proposed by the Bill.

3.4. However, the Association accordingly considers that with the passage of the Bill, discussions in respect of breaks, particularly in bargaining for individual agreements will not feature as employers will know that the provisions in the Bill apply effectively as a disincentive to more favourable provisions in respect of breaks in employment agreements.

3.5. These are all descriptors of enterprise level solutions, which is where the Association considers is the solution to the timing and frequency of breaks and that lifting the issue to a nationally prescribed formulation ignores the different and practical circumstances of many enterprises.

3.6. The Proposed new sections 69DZ and 69ZE are cast in absolute terms. In other words, depending on the hours worked, there is a calculation that determines what and how many breaks an employee is entitled to with little regard for flexibility.

3.7. For example, enterprises employing sole charge employees will face real difficulties in making the proposed provisions work or face increased costs of service delivery, particularly in smaller operations. Anecdotally, increased costs contribute to reduced revenue for business and can lead to service reductions and or job losses.

3.8. Such occupations in hospitality are extensive and include film operators, food and beverage service personnel, and luggage, laundry and room attendants. Indeed, even in large hotels while there may be a number of food and beverage attendants on duty, there may only be one attendant allocated to room service.

3.9. While it is perhaps likely that such employees will accommodate the employer’s reasonable and practicable aspects of timing of breaks, there is no escaping the prescription of the nature and number of breaks. Such arrangements are not a recipe for productivity growth.

3.10. Further, the Bill provides for some apparent flexibility in respect of the provisions of infant feeding facilities supplanted by a code of practice yet there seems little such allowance in respect of rest and meal breaks where rest and meal breaks are universally widespread and seem to work without significant issue and where there is an issue then the presence of stiff health and safety penalties ensure compliance.

3.11. If legislative provisions in respect of rest and meal breaks must be introduced however, then the Association recommends greater regard in the provisions for flexibility in respect of the employer’s operational requirements and resources.

That the bill not proceed.