Full Bench of the South Australian Employment Court overturns decision to award penalty rates to employees who worked through breaks
We previously published an article regarding the decision of Sklifoff, Perry & Cumming v Department of Human Services  SAET 223 which may be accessed here.
Since our last article, the Department of Human Services (the Department) has successfully appealed Deputy President Lieschke’s original decision to the Full Bench of the South Australian Employment Court (the Full Bench). 
The Full Bench confirmed that Mr Sklifoff, Mr Perry and Mr Cumming (the Claimants), who were all youth workers at the Adelaide Youth Training Centre (the AYTC), were provided with a crib break as a result of a working arrangement. As such, their claim for additional penalty rates was not made out.
The AYTC is a prison for young people between 10 and 21 years of age. The Claimants worked in rotating morning and afternoon shifts, being from 6:50am to 3pm and 2:50pm to 11:50pm, respectively. They did not have any paid or unpaid meal breaks free of all duty during their shifts. The Claimants were provided with a meal at the same time the detainees were but during this time they were still required to monitor, supervise and interact with the detainees and model appropriate behaviour.
The Claimants argued that this conduct breached clause 21 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014, and its 2017 successor (the Enterprise Agreement). That clause provides that employees are entitled to a minimum meal break of 30 minutes. It further provides that employees cannot work more than five hours without a meal break, except where the employee is subject to a working arrangement that provides for a crib break. Where an employee works longer than five continuous hours without having had a meal break or crib break, the Enterprise Agreement provides that the employee will also be paid an additional 50% of their hourly rate from the commencement of the sixth hour of their shift. Further details of the facts can be accessed here.
Decision at First Instance
At first instance, the Deputy President held that any break, not just a meal or crib break, must be free of active or operational duties or the continuation of work. His Honour further held that, given the high-risk environment the Claimants were employed in, the supervision and monitoring of detainees during meal times amounted to a work-related task and was not a task that employees could continue to provide whilst on break. Accordingly, the Claimants made out their claim for the additional 50% penalty, as they had not been provided with a crib break of a total duration of 30 minutes.
Decision on Appeal
The Department appealed the Deputy President’s decision on the following grounds:
- the Deputy President ignored the definition of “crib break” in clause 21.5.1 of the Enterprise Agreement, which provided that a crib break had been taken whenever an employee had the opportunity to “take sustenance” during a shift;
- that a meal break entailed a different concept to a crib break and there was no justification to find that the time provided for a meal break (30 minutes) similarly applied to a crib break; and
- the Deputy President erred in finding that the Claimants were not provided with a crib break as they had not engaged in an overall period of 30 minutes where they were not performing duties.
The Full Bench allowed the Department’s appeal, set aside the Deputy President’s original decision and held that the Claimants’ claim for additional penalty rates was not made out.
The Full Bench found that the primary right provided by clause 21 of the Enterprise Agreement was a 30 minute unpaid meal break. However, given that the Enterprise Agreement applies to numerous agencies across the South Australian public service, it may not always be practical or possible for employees in particular workplaces to be provided with a 30 minute unpaid meal break. Consequently, clause 21 makes exemptions to the provision of a meal break, most relevantly in this case being clause 21.5.1, a “working arrangement that provides for a crib break.”
The Full Bench considered there to be two elements to this exemption, the first being that the employee must be provided with a crib break and the provision of this crib break must arise as a result of a working arrangement.
The Full Bench considered general industrial norms and practices in determining that a crib break (sometimes referred to as a tea break or ‘smoko’), is generally seen as a more informal break in comparison to a meal break. The Full Bench considered that crib breaks are typically of a shorter duration during paid time and carry the expectation that the employee would remain at work and be available for work.
In finding that the Claimants had been provided with a crib break, the Full Bench was particularly influenced by their evidence which acknowledged, amongst other things, that:
- the AYTC had a staff kitchen stocked with food, a fridge and an oven that was available to staff;
- staff could have breakfast at work;
- staff had a chance to eat at recess during school time;
- tea and coffee was available at any time;
- staff could bring and eat their own lunch; and
- a cooked breakfast was available to staff on Sundays.
This evidence supported a finding that the Claimants did have an opportunity to, and did in fact, take sustenance while undertaking their duties. At the times they took such sustenance, the Claimants remained on duty or available for duty and were required to resume the performance of their duties if necessary. This was expressly provided for by a literal construction of clause 21.5.1 of the Enterprise Agreement and accordingly the Claimants had been provided with a crib break.
In relation to the second element, that there be a “working arrangement that provides for a crib break”, the Full Bench held that the Deputy President erred in concluding that the working arrangement must also be provided to the relevant staff. The Full Bench construed clause 21.5.1 literally to find that it is not the working arrangement that needs to be provided to the relevant staff but rather that the crib break itself needs to be provided as a result of the working arrangement.
In finding that there was indeed a working arrangement that provided for a crib break at the AYTC, the Full Bench considered a working arrangement to generally describe circumstances that fall short of a formal agreement. Consequently, the Full Bench held that if the circumstances of work at the AYTC created an expectation that, if and when the situation permits, staff would be able to take time to take sustenance, then a relevant working arrangement existed. In reaching this conclusion, the Full Bench referred to the specific absence of any time being stipulated by the AYTC for taking a crib break or for that break’s duration. Accordingly, since there was evidence to establish that the Claimants routinely ate meals during the course of their duties at the AYTC, the Claimants were provided with a crib break as a result of a working arrangement.
Take Home Message
It is worth noting that general industrial norms and practices guided the Full Bench in interpreting the Enterprise Agreement and reaching its decision.
It is also important to understand that this decision is specific to employees covered by the Enterprise Agreement and the circumstances of their particular workplace. As noted by the Full Bench, the Enterprise Agreement applies to various agencies across the South Australian public sector and the nature of these workplaces can vary drastically.
Nonetheless, employers should ensure that they are aware of break entitlements pursuant to their relevant industrial instruments and do their best to ensure that their staff also understand these entitlements and follow the relevant protocols.
For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or firstname.lastname@example.org, Ganesh Krishnan on +61 8 8217 1395 or email@example.com or Anastasia Gravas on +61 8 8217 1331 or firstname.lastname@example.org.
Chief Executive Department of Treasury and Finance (For the Chief Executive, Department of Health and Services) v Sklifoff, Perry & Cumming  SAET 25
Employment & Safety
We are committed to providing high quality, pragmatic and strategic industrial relations and Work Health and Safety (WHS) advice. Our lawyers are approachable, responsive, and accustomed to meeting the tight deadlines that commonly apply…