June 2019

Labour Day commemorates the struggle for an eight-hour working day. New Zealanders were among the first in the world to claim this right when, in 1840, the Petone carpenter Samuel Parnell won an eight-hour day without loss of pay, instead of the standard 10-hour day.

This was limited to tradesmen and labourers and lacked legislative sanction at the time. Other workers, including seamen, farm labourers, and hotel, restaurant and shop workers, worked much longer hours.

From 1882, efforts were made to legalise the eight-hour day without success, until the 1930s.

Labour Day was first celebrated in New Zealand on 28 October 1890 when the Liberal government at the time made Labour Day a public holiday. It was ‘Mondayised’ in 1910, and since then it has been held on the fourth Monday in October.

Labour Day historically brought welfare state labour issues to the fore. More recently, for example, unions have been campaigning over junior doctors’ working hours, equal pay and pay equity.

The eight-hour day, 40-hour working week, is still set as the maximum for all workers pursuant to section 11B Minimum Wage Act 1983. Exceptions must be by agreement and clearly documented in employment agreements. Only workers aged between 17 and 18 have an absolute right to an eight-hour day/40-hour maximum working week with 12 continuous hours’ break between work days and two days off a week.

Under section 65(2)(a)(iv) Employment Relations Act 2000 (ERA 2000), all employment agreements must specify agreed hours of work, which may be guaranteed hours, the hours and days and start and finish times, or flexibility, for example, by roster. However, the 2016 reforms under sections 67D – 67G ERA 2000 on availability provisions, guaranteed minimum hours for shift workers, shift cancellation and the right to refuse work, have created difficult drafting issues for employment agreements in some working environments.

The timing and entitlement to meal and rest breaks returned on 6 May 2019 to a prescriptive model after arguments the earlier measures often deprived ordinary workers of meal and rest breaks leading to an increased risk in health and safety. The number and duration of breaks depends on the number of hours worked. So for example, an eight-hour work day must include two 10 minute rest breaks and one 30 minute minimum unpaid meal break, while a four-hour work day must include a 10 minute break. Some limited exceptions apply for employers in specified essential services or national security services.

Each case is different, but whether workers on call or on sleepovers are at work, is often a complex question of fact and law. Much turns on the level of the restrictions placed on workers when on a sleepover or on call. The greater the restrictions, the more likely the worker is at work.

New Zealanders are tending towards a long working hours culture. Mobile phones make some of us accessible for work 24/7. The poverty gap has contributed to workers on or near the minimum wage working more hours to make ends meet. Latest OECD global figures average annual working hours (fulltime and part-time) put New Zealand just above the OECD average.

The so-called ‘Gig’ economy broadly refers to the idea that people are increasingly moving away from the model of having one job with guaranteed hours, towards a model where they have one or more jobs with flexible hours and flexible pay structures, and where lines between employee and contractor are blurred, like Uber drivers. The ‘standard’ eight-hour day, 40-hour maximum working week, still enshrined in the Minimum Wage Act 1983, increasingly does not fit the way we work and is virtually consigned to the annals of history. We all need to grapple with the new norms as they emerge.