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Norman Waterhouse

Working lunch breaks – are your employees entitled to penalty rates?

In the recent decision of Sklifoff, Perry & Cumming v Department of Human Services [2019] SAET 223, Deputy President Lieschke of the South Australian Employment Court (the Court) found in favour of Mr Skilfoff, Mr Perry and Mr Cumming (the Applicants) who claimed penalty rates beyond the fifth hour of their usual work shifts, on the ground they were not permitted to any meal or crib breaks during their normal working days (the Claim).


The Applicants are employed by the Department of Human Services (the Department) as Youth Workers in the Adelaide Youth Training Centre (the ATYC). The AYTC is a prison for young people between 10 and 21 years of age.

The Applicants worked in rotating morning and afternoon shifts, being from 6:50am to 3pm and 2:50pm to 11:50pm, respectively. The Applicants did not have any paid or unpaid meal breaks free of all duty during their shifts. The Applicants were provided with a meal at the same time the detainees were, however, during this time the Applicants were still required to monitor, supervise and interact with the detainees and model appropriate behaviour.

In making the Claim, the Applicants relied on the relevant terms of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014, and its 2017 successor (the Enterprise Agreement).

Clause 21 of the Enterprise Agreement provided that employees are entitled to a minimum meal break of 30 minutes and further, those employees cannot work more than five hours without a meal break, except where:

  • There is a need, or the employee elects, to maintain continuity of active duty, care or service provision; or
  • The employee is subject to a working arrangement that provides for a crib break.

In instances where an employee works longer than five continuous hours without having had a meal break or crib break, that employee will also be paid an additional 50% of their hourly rate from the commencement of the sixth hour of their shift.

A ‘crib break’ is defined in the Enterprise Agreement as a period of time during which an employee takes sustenance while remaining on duty or is available for duty and if necessary will resume the performance of duties, which time either counts as part of the employee’s ordinary hours or accrues as TOIL or similar.

The Applicants argued that the industrially accepted definition of a ‘crib break’ is one that is free from active duty (free from direct contact with detainees), albeit that the employee may be required to remain at the workplace and have their break interrupted. The Applicants interpreted the phrases “remaining on duty” and being “available for duty” as referring to being at work on duty but not actively performing activities or operational duties. Essentially, the Applicants argued that a crib break should not involve the monitoring and supervision of detainees within a custodial environment. Similarly, the term “available for duty” meant the Applicants’ breaks can be interrupted if and when required to perform their duties.

The Applicants further submitted that employees were not given any meal breaks or other breaks that were free from active or supervisory duties. Instead, the need to maintain staff ratios and supervise detainees during their meal breaks hindered their ability to go on a duty-free crib break.

The Department denied the Claim on the basis that the Applicants were subject to a working arrangement that provided for recognised paid crib breaks on each shift worked. The Department rejected the Applicants’ interpretation of the phrase “remaining on duty”, noting that that a crib break has no minimum length and could occur during normal work duties.

Furthermore, the Department submitted that the Applicants had ample opportunity to take some sustenance while performing their normal duties, in the form of eating or drinking something while performing their normal duties.


Deputy President Lieschke accepted the Applicants’ evidence that they had not taken any crib breaks free of active or operational duties, expect for the occasional toilet break or emergency phone call.

The Court also held that there was no evidence to suggest that a crib break free of active or operational duties had in fact been arranged or facilitated by supervisors. Further, that the supposed arrangement in place as advanced by the Department did not satisfy the definition of a crib break.

In respect of the disputed phrases of “remaining on duty” and “or available for duty”, the Court held that the phrases convey an intention that any break, not just a meal break, must be free of active or operational duties or the continuation of work. Deputy President Lieschke noted that it is not the intention of the Enterprise Agreement for employees to keep performing the same continuous work or active duties while simply eating or drinking something. In the present circumstances, due to the high-risk environment the Applicants were working in, the supervision and monitoring of detainees whist on lunch amounted to a work-related task. This is distinct from activities that employees can continue to provide whist on a break.

The Court was satisfied that the Applicants made out the Claim that the 50% penalty to which the Applicants were entitled to by operation of Clause 21 of the Enterprise Agreement applies to a 30 minute crib break period, which is capable of being interrupted and then resumed.

Take Home Message

As we all know, many employees often ‘work through’ their lunch break. Although employees may not raise this as an issue at the time, this does not prevent them from making a claim for unpaid wages in the future. This practice may result in employers being exposed to significant underpayment claims, as well as work, health and safety issues arising. Employers must therefore offer and facilitate appropriate arrangements that permit their employees to take sufficient breaks from duty.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or or Lincoln Smith on +61 8 8210 1203 or

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