69ZEBCompensatory measures

1. If the employer and employee are unable to reach agreement under section 69ZEA(4), an employee is entitled to, and the employee’s employer must provide the employee with, compensatory measures.

2. In this section, compensatory measure—

3. means a measure that is reasonable and designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1); and
4. may include (without limitation)—
   1. a measure that provides the employee with time off work at an alternative time during the employee’s work period (for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions); or
   2. financial compensation; or
   3. both time off work at an alternative time and financial compensation.

5. For the purposes of subsection (2),—

6. if the compensatory measure provided is time off work at an alternative time,—
   1. the employee must be provided with at least an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and
   2. the time off work at an alternative time must be provided on the same basis as the rest break or meal break that the employee would otherwise have taken:
7. if the compensatory measure provided is financial compensation, that financial compensation, at a minimum, must relate to the amount of time that the employee was required to work but would otherwise have taken as a rest break or meal break, and must,—
   1. in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or
   2. in the case of any other employee, be calculated at the employee’s ordinary rate of pay:
8. if the compensatory measure includes both time off work at an alternative time and financial compensation, the total amount of alternative time plus time for which payment is made must be at least equivalent to the amount of time that the employee would otherwise have taken as a rest break or meal break.

9. For the purposes of subsection (3)(c), any financial compensation must,—

10. in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or
11. in the case of any other employee, be calculated at the employee’s ordinary rate of pay.

Notes

• Section 69ZEB: replaced, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53).