Cde f emplyment practice n infant feeding An Emplyer s guide t: Sectin 69Y f the Emplyment Relatins Act 2000 Frewrd As Minister f Labur, I am pleased t publish the Cde f Emplyment Practice n Infant Feeding. It is imprtant wrkplaces take a practical and gd faith apprach t supprting wmen returning t wrk after childbirth. This allws fr real gains in flexibility and prductivity fr bth emplyees and emplyers.since 1 April 2009, under Sectin 69Y f the Emplyment Relatins Act 2000, emplyers have been required t prvide unpaid breaks and/r facilities fr emplyees wh wish t breastfeed their infants r express milk during wrking hurs. The intent f the new law is t create minimum standards fr mdern flexible wrkplaces. T help emplyers understand their bligatins, Parliament mandated that the Minister f Labur publish a Cde f Emplyment Practice. The Cde prvides useful guidance n the range f factrs an emplyer can cnsider when negtiating a breastfeeding arrangement. It gives practical ideas n factrs t cnsider such as health and safety, facilities, resurces and space fr breastfeeding emplyees.it shuld be nted that there is n abslute bligatin n emplyers t prvide breaks and/r facilities. The Act says the prvisin f apprpriate facilities shuld be reasnable and practicable in the circumstances. Thus, emplyers in clse gegraphical prximity may wish t jin tgether t prvide a facility all their staff can use.this Cde has been develped by the Department f Labur in cnsultatin with grups such as Business New Zealand, the New Zealand Cuncil f Trade Unins, wmen s cmmunity and health grups and the Ministry f Health. I am cnfident this Cde will help emplyers t meet their bligatins under the Act. My department is develping supplementary resurces t prvide mre detailed guidance fr emplyees and emplyers n matters that cannt be addressed thrugh this Cde. I am sure the Cde and these resurces will assist t encurage family-friendly wrk practice. KATE WILKINSON Minister f Labur February 2010
Sectin ne intrductin 1. This Cde prvides a guide fr emplyers wh want t knw hw t meet their bligatins under sectin 69Y f the Emplyment Relatins Act 2000 (the Act). This sectin f the Act relates t the prvisin f breaks and facilities fr emplyees wh wish t breastfeed during a wrk perid. 2. The Cde des nt tell emplyers what decisins t make but prvides guidance t assist them t determine what is reasnable and practicable under the circumstances. An emplyer may be justified in declining a request t prvide breaks and/r facilities fr the purpses f breastfeeding if it is nt reasnable and practicable in the circumstances t d s. Such a case wuld arise if there is a substantial imbalance between the impact n the emplyer and the needs f the emplyee in prviding apprpriate breaks and/r facilities. 3. The legal framewrk within which this Cde will perate is explained in the cntent f the Cde. While every effrt has been made t ensure that explanatins included in the Cde are accurate, nly the curts can give authritative interpretatin f the law. 4. The Act des nt require wrkplaces t use r refer t cdes f practice. The fact that the prvisins f this Cde have been satisfied will nt necessarily mean an emplyer s actins are, r have been, cmpliant with the Act. This Cde is nt a substitute fr the Act, but the Emplyment Relatins Authrity r Emplyment Curt may have regard t this Cde in determining whether emplyers have met their bligatins under sectin 69Y f the Act. If the Emplyment Relatins Authrity finds that an emplyer has nt met their bligatins, a penalty may be impsed. Sectin tw interpretatin This sectin prvides guidance n the intent behind sme f the key phrases and terms used in sectin 69Y f the Act. Breastfeeding 5. As the Act states in sectin 69X, breastfeeding includes expressing breast milk. Reasnable and practicable in the circumstances 6. The bligatin f an emplyer t prvide apprpriate breastfeeding facilities and breaks depends n what is reasnable and practicable t prvide in the circumstances. 7. The intent behind the terms "reasnable and practicable in the circumstances" is t indicate that the emplyer's bligatin t prvide facilities and/r breaks is subject t an bjective test ( what is reasnable and practicable ) that is applied t the particular circumstances. 8. In rder t determine what is reasnable and practicable, an emplyer shuld give due cnsideratin t the matter, which is likely t include balancing a range f relevant factrs. The Act des nt specify all factrs that may be cnsidered relevant (as these will vary between each wrkplace), but the perating envirnment and resurces will mst likely be cnsidered as part f the emplyer s circumstances. 2 ENZ-022 06/16 Cde f emplyment practice n infant feeding
9. The availability and nature f facilities and breaks, therefre, is likely t vary between emplyers, the circumstances and individual emplyees. Circumstances may als change ver time. Sectin three general requirements This sectin prvides guidance n emplyers bligatins under sectin 69Y f the Act. Breaks 10. An emplyer shuld cnsider if it is reasnable and practicable in the circumstances t prvide apprpriate breaks even if apprpriate facilities cannt be prvided in the wrkplace. 11. When emplyers are making a decisin abut the nature and extent f breastfeeding breaks and facilities prvided t emplyees, they shuld weigh up: the expected impact n the business (bth psitive and negative) any ptential limitatins due t the peratinal envirnment and resurces the needs f the emplyee cncerned. 12. Impacts (bth psitive and negative) culd relate t health and safety, cst in terms f mney, time, space, prductivity and prfitability and the ability t attract and retain staff. 13. The peratinal envirnment which an emplyer may take int accunt might include type f wrkplace, business needs, health and safety requirements, number f emplyees, number f wmen emplyees, lcatin f place f wrk (e.g. whether fixed r mbile wrkplace), cver fr emplyees during the break perids, and the nature f the wrk an emplyee des. 14. The resurces which an emplyer is able t take int accunt culd include available time, mney, wrkplace facilities, space and staff. 15. Cnsideratin f an emplyee s needs culd include their ability t effectively balance demands f their jb and their parenting rle. 16. A request may be declined if it is nt reasnable and practicable in the circumstances t d s. Fr instance, an emplyer may be justified in declining a request when there is a substantial imbalance between the impact n the emplyer and the needs f the emplyee in prviding apprpriate breaks and/r facilities. 17. An emplyer is required t prvide apprpriate breastfeeding breaks fr an emplyee wh wishes t breastfeed during a wrk perid, s far as it is reasnable and practicable t d s in the circumstances. 18. The apprpriate length, timing and frequency f breaks will differ fr each emplyee due t the nature f breastfeeding, the needs and age f an infant, whether the emplyee is slely expressing milk, and the peratinal envirnment the emplyee wrks in. 19. An apprpriate break is likely t be lng enugh t prvide an emplyee time t breastfeed r express milk. 20. The apprpriate number f breaks is likely t be enugh t allw an infant t breastfeed, r fr the emplyee t express milk, an apprpriate number f times having regard t the length f the wrk perid. 3 ENZ-022 06/16 Cde f emplyment practice n infant feeding
21. Breastfeeding breaks are in additin t usual rest and meal breaks unless parties agree therwise. 22. Breastfeeding breaks are paid nly if an emplyer and emplyee agree. Facilities 23. S far as it is reasnable and practicable t d s in the circumstances, an emplyer is required t prvide apprpriate facilities in the wrkplace fr an emplyee wh wishes t breastfeed in the wrkplace. 24. Breastfeeding emplyees need: a private, quiet, clean and warm rm r space a suitable chair r cuch. 25. The space des nt need t be permanent i.e. a screened ff area may be a practical ptin if a separate rm cannt be prvided. The space shuld be large enugh t change a nappy unless the emplyee is slely expressing milk. 26. If an emplyee is expressing breast milk they may als need access t: a fridge (a cmmunal fridge is acceptable) hygienic hand washing facilities a lckable rm (with a pwer pint if an electric pump is used) a clean space t stre equipment (cupbard r lcker). 27. These facilities d nt need t be in the same rm r space. 28. Tilets are nt cnsidered an apprpriate place t breastfeed r express breast milk. 29. A few things an emplyer might cnsider when determining whether the facilities they are ffering emplyees are apprpriate in the circumstances are: wrkplace health and safety implicatins when cnsidering a breastfeeding arrangement invlving an infant in the wrkplace, an emplyer will need t identify any health and safety issues that might arise in relatin t the mther, the infant and c-wrkers facilities - an emplyer shuld cnsider the standard f hygiene, cmfrt, and privacy f the allcated space; the suitability f equipment such as pwer pints fr breast pumps and the availability f clean running water available resurces - the facilities prvided fr breastfeeding d nt have t be permanent if there is nt a lng term need. The type f facilities prvided t emplyees will vary depending n the size and nature f the wrkplace and the resurces available space - if the physical wrkplace is nt a suitable envirnment fr breastfeeding, emplyers and emplyees may agree t make ther arrangements. 30. An emplyer and emplyee may agree that breastfeeding breaks can be taken ffsite where wrkplace facilities cannt be prvided but it is reasnable and practicable t prvide apprpriate breaks. An emplyer is nt bligated under the Act t identify apprpriate ffsite facilities in this situatin. 31. Other arrangements culd include an apprpriate space clse by that is prvided jintly by emplyers in the area fr their emplyees, hme, r nearby amenities, such as an early childhd centre r Plunket rm. 4 ENZ-022 06/16 Cde f emplyment practice n infant feeding
Negtiating a breastfeeding arrangement 32. Establishing arrangements fr breastfeeding in the wrkplace is a matter fr an emplyer and emplyee t negtiate. 33. What is reasnable and practicable might change as circumstances change. It is imprtant that emplyers and emplyees cmmunicate regularly, re-evaluate their arrangement when either party s needs change, and mnitr the impact f the arrangement n the wrkplace, the emplyee and ther staff. Any changes t the arrangement shuld be agreed between parties t the agreement. 34. Sme things which the emplyer and emplyee might need t agree t, and renegtiate, frm time t time are: the length, timing and frequency f breastfeeding breaks the lcatin in which these breaks will be taken whether the breaks will be paid r unpaid (the breaks are paid nly if the emplyee and emplyer agree that they are paid) whether anther staff member will need t cver the emplyee s wrk duties during her breastfeeding break whether start and finish times can be shifted t accmmdate breastfeeding requirements the prcess t change the arrangement. Breastfeeding breaks d nt have t be frmalised by a variatin t an emplyment agreement, but a written agreement will help t set ut a mutual understanding f the arrangement and the bligatins and expectatins f bth parties. A written agreement als prvides a clear basis t negtiate change. 5 ENZ-022 06/16 Cde f emplyment practice n infant feeding