Sklifoff v Chief Executive, Department of Treasury and Finance (for the Chief Executive, Department of Human Services) - [2021] SASCA 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SKLIFOFF v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE (FOR THE CHIEF EXECUTIVE, DEPARTMENT OF HUMAN SERVICES)
[2021] SASCA 96
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Livesey and the Honourable Justice Bleby)
23 September 2021
INDUSTRIAL LAW - SOUTH AUSTRALIA - SOUTH AUSTRALIAN EMPLOYMENT COURT AND ITS PREDECESSORS - JURISDICTION - TO INTERPRET AWARD OR ENTERPRISE AGREEMENT
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - ENTERPRISE AGREEMENTS
INDUSTRIAL LAW - SOUTH AUSTRALIA - DEFINITIONS AND INTERPRETATION
Appeal against a decision of the Full Bench of the South Australian Employment Tribunal on the proper construction of cl 21 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 (2014 EA).
The appellants are youth workers employed by the Department of Human Services at the Adelaide Youth Training Centre (the Department) whose working arrangements have been determined in accordance with the 2014 EA. Clause 21 of the 2014 EA imposes an obligation on the employer to allow employees to have a meal or crib break on every shift, and provides for the payment of penalty rates to those workers who are not provided with one or the other.
Due to the nature of the appellant’s employment, they are often on duty for the entirety of their shift with no period where they are completely relieved of their duties for the purposes of a meal break. The appellants contend that they are entitled to penalty rates on the ground that they are not provided with a 30-minute meal break. The Department denies this claim on the ground that the 2014 EA exempts the payment of penalty rates if there is an arrangement in place for the provision of a crib break.
The matter was first heard by the Deputy President who found for the appellants, concluding that cl 21.5 of the 2014 EA means a break from performing all active or operational duties for at least 30 minutes to take sustenance. The Full Bench then allowed the respondent’s appeal, holding that the appellants were subject to an arrangement under which a crib break could be taken, even though the employee performed some work while taking sustenance.
Held (by the Court), dismissing the appeal and affirming the decision of the Full Bench:
1. The taking of meals and resorting to the staff kitchen occurred in accordance with a workplace arrangement within the meaning of the term in cl 21.2(c) of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014.
2. A crib break, as defined by cl 21.5.1 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014, may include a period of time during which the employee is performing all or some of his or her employment duties.
Duncan’s Holdings Limited v Desmond Keith Cross & Ors (1997) 76 IR 261; Australian Workers Union v Department of Primary Industries and Resources [2007] SAIRC 60, discussed.

SKLIFOFF v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE (FOR THE CHIEF EXECUTIVE, DEPARTMENT OF HUMAN SERVICES)
[2021] SASCA 96
Court of Appeal - Civil: Kourakis CJ, Livesey and Bleby JJA

THE COURT: This is an appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and SAET, respectively) on the proper construction of cl 21 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 (the 2014 EA). The appellants are youth workers employed by the Department of Human Services together with its successor agencies (the Department) at the Adelaide Youth Training Centre (AYTC). Clause 21 of the 2014 EA imposes an obligation on the employer to allow employees a meal or crib break on every shift and provides for the payment of penalty rates to those workers who are not provided with one or the other.
The AYTC is a detention facility for youths aged between 10 and 21 years of age who are either on remand or serving sentences of detention. The proper supervision of the youths so detained requires the close and constant attention of the youth workers. For that reason, save for a few exceptional occasions, the appellants, like other AYTC youth workers, are on duty for the entirety of their shift. They have no time off during which they are completely relieved of their employment duties, and not liable to be recalled, when they can have a meal. The Department allows youth workers to eat with the detainees when they take their meals, but the workers remain on duty throughout that time monitoring and supervising them. In particular, youth workers must be vigilant to ensure that the detainees do not use items of cutlery to cause harm to themselves or others during meal times, or make off with them when they leave.
The Department also maintains a stocked staff kitchen. Youth workers can resort briefly to the kitchen to take something to eat or drink.
The appellants claim that they are entitled to penalty rates on the ground that they are not provided with a 30-minute meal break. The Department denies their claim on the ground that the 2014 EA exempts the Department from the payment of penalty rates if there is in place an arrangement which provides for a crib break. The Department contends that the opportunity to eat a meal with detainees or to take food and drink from the staff kitchen is a crib break.
The Deputy President who heard the trial held that a crib break for the purposes of cl 21.5 means a break from performing all active or operational duties for at least 30 minutes, during which time the employee may take sustenance. His Honour therefore upheld the appellants’ claim. The Full Bench allowed the Department’s appeal and set aside that decision, holding that the appellants were subject to an arrangement under which a crib break could be taken, even though they performed some work when taking meals with the youths.
There are two questions of construction on which the appeal turns. The first is whether the taking of meals, and resorting to the staff kitchen, occurred in accordance with a ‘workplace arrangement’ within the meaning of the term in cl 21.2(c) of the 2014 EA. The second is whether a crib break, within the meaning of that term in cl 21.5.1 of the 2014 EA, may include a period of time during which the employee is performing all or some of his or her employment duties. These questions are answered in the affirmative. The Court therefore dismisses the appeal and affirms the decision of the Full Bench. The Court’s reasons follow.
The 2014 EA
Clause 4 of the 2014 EA lists the agencies to which it applies. The agencies include the Attorney‑General’s Department, the Departments of Correctional Services, Education and Child Development, TAFE SA, Environment, Water and Natural Resources, and Planning, Transport and Infrastructure. It extends to emergency services, including South Australia Police and the Country and Metropolitan Fire Services. The Courts Administration Authority too falls within its ambit. The 2014 EA must therefore be read against an industrial and employment context which extends far beyond the work of the youth workers employed at the AYTC.
Moreover, the provisions of the 2014 EA are expressed in relatively general terms because it is an umbrella agreement; cl 16 contemplates the making of more detailed arrangements, known as workplace flexibility agreements, for employees within particular workplaces to meet the operational needs of that workplace.
Clause 16.1 records the parties’ agreement that agencies may negotiate more flexible employment arrangements with employees (including an individual employee) at a workplace. A party may propose a workplace flexibility agreement pursuant to cl 16.2 of the 2014 EA by giving notice of the proposed terms. Clause 16.2.2 creates a framework for consequential consultations and negotiations. Clause 16.2.3 provides that a workplace flexibility proposal may not be put to a vote where it proposes employment arrangements that are less favourable (considered as a whole) than arrangements applying pursuant to the 2014 EA, including a relevant Award. However, that clause deems the ‘no less favourable’ requirement to be met when the relevant agency and the relevant employee representatives so agree.
The predecessor of cl 16 of the 2014 EA is cl 19.1.1 of the South Australian Government Wages Parity (Salaried) Enterprise Agreement 2006 (the 2006 EA). It acknowledged:
… the diversity of workplaces [it covered] … and that there may be operational circumstance that can best be addressed by alternative arrangements that will be mutually beneficial to the agency and the employees within the particular workplace (e.g. crib or paid meal break, TOIL, time credits, or shortening of the working day).
By cl 19.1.2 of the 2006 EA it was agreed that, where operational circumstances demanded alternative arrangements, a workplace flexibility agreement might be made.
Clause 16.2.4 of the 2014 EA provides that, where a majority of affected employees agree on a proposal, the employment arrangements so agreed must be provided in writing and ‘will apply as if incorporated as an appendix to this Enterprise Agreement’ (emphasis added).
Appendix 4.1 of the 2014 EA includes workplace flexibility agreements regulating crib breaks for quarantine station inspectors, community rehabilitation workers and after hours service coordinators. The workplace flexibility agreement for quarantine station inspectors predates the 2014 EA, having come into effect on 28 September 2006. It expressly provides for a 30-minute crib break, during which the employee is able to consume a meal but ‘will be available for duty as and when required’ and if necessary will interrupt the crib break and ‘re-engage in active duty’. The distinction drawn between being available for duty and re-engaging in active duty should be noted. The crib break is to be recorded in a paid day off (PDO) time bank for the sole purpose of the employee taking a paid day off at a time to be agreed between the employer and the employee. The workplace flexibility agreement for community rehabilitation workers in Adelaide Metropolitan Mental Health also predates the 2014 EA, having come into effect on 23 February 2012. It provides for a 30-minute crib break which counts towards an employee’s ordinary hours. There is no reference to resuming duties. Finally, the workplace flexibility agreement for after hours service coordinators employed by the Department for Communities and Social Inclusion provides for a 30-minute crib break which will count as part of the coordinators ordinary hours but will not accrue as TOIL. It came into effect on 22 August 2015 and was approved by the Industrial Relations Commission on 2 March 2016. It includes a definition of crib break which is taken from the 2014 EA.
Clause 21 of the 2014 EA makes provision for ‘meal breaks’ and ‘crib breaks’ in the following terms:
21.    MEAL BREAKS
21.1Subject to this clause, a minimum meal break of 30 minutes per day is to be taken by all employees, which time will not count as part of an employee’s ordinary working hours.
21.2No employee will be required to work more than 5 hours without such a break, except where the employee is subject to the following arrangements:
a.    the employee is employed for not more than 6 hours;
b.    there is a need, or the employee elects, to maintain continuity of active duty, care or service provision;
c.    the employee is subject to a working arrangement that provides for a crib break; or
d.    the employee has an arrangement approved by the chief executive to accommodate the employee’s personal circumstances or a request by the employee for a flexible working arrangement.
21.3Where an employee is required by an authorised person to work without having had, or commenced, a minimum meal break or crib break (as applicable), the employee will be paid an additional 50% of the employee’s ordinary hourly rate from the commencement of the sixth hour until the employee is provided with a meal break or crib break (as applicable) or until the completion of the employee’s ordinary hours of work for that day or shift. It is not the intention of the parties that this clause or penalty would detract from providing an employee with a break after 5 hours of work.
21.4Unless the employer has already made payment of a penalty, a penalty payment under this clause must be requested by the employee to be paid within 8 weeks of the end of the pay-cycle in which the meal or crib break was not provided, absent which no penalty is payable under this clause.
21.5For the purpose of this clause:
21.5.1“crib break” means a period of time during which the employee takes sustenance while remaining on duty or 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.
21.5.2“authorised person” means a person who has authority to direct the manner in which, or the times during which, the employee is to work.
The Court makes the following general observations. First, cl 21.1 evinces an intention that employees will generally enjoy a 30-minute unpaid meal break during which they are not recalled to duty. Secondly, cl 21.2 provides that an employer cannot require an employee to work more than five hours without a meal break unless the shift is no longer than 6 hours (subparagraph (a)) or there is a ‘need’ to maintain continuity of active duty, care or service (subparagraph (b)). The exceptions in subparagraphs (c) and (d) are not in truth circumstances in which an employee can be required to work without a meal break because they are premised on the employee’s assent to an alternative arrangement. Thirdly, the term ‘working arrangement’ suggests that no formality is required. The connotation is of a workplace practice which has the assent, tacit or express, of employees and the Department. It does not imply an agreement which, of itself, has legal force. Fourthly, in accordance with cl 21.3, an employee, who is subject to a working arrangement which provides for a crib break, is not entitled to the penalty rate if a crib break is provided before the commencement of the sixth hour of a shift. Fifthly, the last sentence of cl 21.3 does not differentiate between meal breaks and crib breaks. It is a statement of intention that the obligation to pay penalty rates does not detract from the limited circumstances prescribed by cl 21.2 in which an employee can be required to work for more than five hours without a break of any kind at all.
In 2008, in accordance with the 2006 EA, a workplace flexibility agreement was made which provided a 30-minute paid crib break for workers at the Magill and Cavan youth detention centres. It provided that during the crib break an employee may consume a meal, make personal phone calls or take refreshment, but would ‘be available for duty as and when required and if necessary will interrupt the crib break and re-engage in active duty’ (emphasis added). The workplace flexibility agreement was included in the appendix to the 2006 EA. The provision of a break of fixed duration is significant. In that context, the emphasised words suggest that no work will be performed unless and until the crib break is interrupted and the employee re-engages in active duty.
In a letter from the Department to the then general secretary of the Public Service Association (the PSA) on 1 April 2009 it was emphasised that because employees on crib breaks were available for duty as and when required, the provision of the paid crib break would not result in the employment of additional youth workers. By letter dated 15 April 2009 the then acting general secretary of the PSA confirmed its agreement to the proposal, on the basis that there ‘will be no claim for extra staff to cover Crib Breaks in the Magill and Cavan Youth Training Centre’.
On 23 January 2013, an officer of the Department wrote to the then general secretary of the PSA raising the limited application of the workplace flexibility agreement to the Magill and Cavan detention centres and asked whether it could apply, as an interim measure, to the AYTC ‘whilst a review of the paid crib break and programmed day off arrangement is conducted’. The continuation of the workplace flexibility agreement as an interim measure was agreed by the PSA by email on 25 February 2013. On 16 September 2015, the Director of Human Resources of the Department wrote to the general secretary of the PSA informing her of the conclusion of a review into the crib break arrangement. It referred to the practice of requiring youth workers to take their meals with detainees. It continued:
In accordance with the enclosed workplace flexibility proposal, as the above mentioned employees engaged within the Adelaide Youth Training Centre are unable to be free from all duty for the duration of a meal break they will continue to be entitled to a crib break of 30 minutes duration, which time will count as part of their ordinary hours.
(Italics added)
A workplace flexibility agreement allowing for a 30-minute paid crib break was proposed in accordance with cl 16.2.1 of the 2014 EA. The proposed agreement defined a crib break consistently with the 2014 EA as follows:
A ‘Crib Break’ means a period of time during which the employee takes sustenance while remaining on duty or 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.
On 13 October 2015, the general secretary of the PSA wrote to the chief executive of the Department and denied that there was an arrangement in place providing for the taking of a crib break at the Adelaide Youth Training Centre, but welcomed continuing consultation and negotiation on the Department’s proposal. The Court observes here that not only was that position inconsistent with the PSA’s communication on 25 February 2015, but it also left the youth workers without the benefit of the interim arrangement. That interim arrangement provided a crib break of the very kind which the PSA contends, but the Department denies, is required by the 2014 EA. The general secretary’s letter concluded by foreshadowing claims for underpayment based on the Department’s failure to pay penalty rates in accordance with cl 21.3 of the 2014 EA. The PSA stated its view that the meals provided to youth workers at meal times was simply the provision of a meal in lieu of the meal allowance provided for by cl 5.3.1.4 of the Award. On 23 October 2015 the Department replied, asserting that the interim arrangement with which the PSA had earlier agreed still applied pending negotiation of a new agreement.
On 18 November 2015, an email from the AYTC general manager to the youth workers asserted that a crib break commenced when ‘sustenance, refreshment etc.’ was taken and that staff and supervisors should plan their day in order to allow them to take a crib break.
By letter dated 6 January 2016, the then general secretary of the PSA asserted to the Chief Executive of the Department that the interim arrangement was less favourable than that provided for by the 2014 EA. As shall be seen, the converse is true.
Returning to the 2014 EA, cl 27 provides a grievance and dispute avoidance procedure which requires, in escalating order, discussions at workplace level and agency level before referral to what then was the Industrial Relations Commission of South Australia for conciliation and if necessary arbitration.

Clause 28.1 of the 2014 EA provides that a party believes that a variation is required by reason of ambiguity or uncertainty, that party may give notice of the basis for that belief to the chief executive of the Department of Premier and Cabinet, or in the case of a variation sought by the Government, to the effected associations. The giving of notice triggers a need for a response.
By cl 28.3 the parties to the 2014 EA recognise that variations may be made to it for the purpose of implementing a workplace flexibility agreement, and by variations being made more generally in respect of a particular agency or agencies.
The litigation in the SAET, and now in this Court, is the culmination of the escalating dispute outlined in the above correspondence. In particular, the parties, having failed to resolve their dispute by making a workplace flexibility agreement fairly adapted to the particular conditions of the AYTC, now seek an adjudication of their rights and liabilities according to the more broadly expressed terms of the 2014 EA.
Discussion
It is not disputed that the appellants took meals with the detainees, and had access to a stocked staff kitchen. It is also clear, indeed it is the appellants’ complaint, that they remained on duty at least when they ate with the detainees. Those times therefore counted as part of their ordinary hours. The provision and taking of food whilst on duty is only possible if there is a mutual accord to that effect; it cannot be effected by unilateral action. It appears from the evidence that the meals were provided and taken, at the very least, on an understanding that it discharged the Department’s obligation to pay a meal allowance. It is also clear that the youth workers and the Department shared the view that youth workers could and should discharge their employment responsibilities to monitor and supervise the detainees whilst taking a meal with them. Similarly, both the Department and the youth workers have conducted themselves on the common understanding that the youth workers were permitted to briefly resort to the staff room to snack or drink without requiring additional workers to cover for them whilst they were away from the detainees.
It is difficult to see, therefore, how the taking of meals with the detainees and the resort to the staff kitchen is not the subject of, and indeed only possible because there was, an arrangement in the workplace to that effect. That being so, there is ‘a working arrangement’ within the ordinary meaning of those words.
However, the appellants contend that that phrase in s 21.2(c) of the 2014 EA has a special meaning which requires a greater degree of formality, but the arguments in support of that proposition are somewhat elusive. The applicants submit that an arrangement could only fall within cl 21.3(c) if the parties agreed that the break for which it provided was a crib break for the purposes of the 2014 EA. However, that submission conflates the factual question, whether there was a workplace arrangement, with the proper characterisation of the break for which it provides in accordance with the terms of the 2014 EA. The proper characterisation of the break is the subject matter of the second question of construction which is before the Court. That submission must therefore be rejected.
The appellants also submit that a workplace arrangement must be in the form of the written agreements included in Appendix 4 of the 2014 EA. That submission too must be rejected. The agreements in Appendix 4 are workplace flexibility agreements. Clause 16 provides a procedure for making workplace flexibility agreements but cl 21.3(c) of the 2014 EA refers not to a workplace flexibility agreement but to the, necessarily less formal, concept of a workplace arrangement. Clause 16.2.5 goes further and provides for the variation of the 2014 EA by inclusion of a workplace flexibility agreement in Appendix 4.
Finally, the appellants submit that the words ‘subject to’ imply something more formal, if not legally binding, than a mere working arrangement. That submission is inconsistent with subparagraphs (b) and (d) of cl 21.2. Moreover, it reads too much into those words. The words ‘subject to’ merely describe the necessary connection between the employee and the arrangement. The words ‘subject to’ mean no more than that the employee must fall within the scope of one of the subparagraphs if the exemption to the provision of a meal break is to apply; they do not change or affect the meaning of any of those quite disparate subparagraphs.
The Court therefore construes a workplace arrangement to mean a way in which work is performed, and breaks taken, with the mutual assent of the employer and employees. If writing were required, the arrangement is recorded in the correspondence to which reference has been made. The dispute about the legal effect of the arrangement, and the absence of agreement on whether it provides for a crib break within the meaning of cl 21.5.1 of the 2014 EA, does not mean that it is not a working arrangement.
The second question of law before the Court is whether an arrangement for the provision of a crib break can include a break taken whilst the employee is performing all or some of his or her duties. In that respect, the proper meaning of a crib break is informed by the entitlement to have that period of time counted towards an employee’s ordinary hours. The entitlement to remuneration is ordinarily dependent on an employee performing, or being ready, willing and able to perform, his or her duties, as and when the need to do so arises. There is no obvious reason, as a matter of construction of the 2014 EA, to limit a crib break to the latter.
The range of work to which the workplace flexibility agreements in Appendix 4 apply, and the variations in their terms, provides important context to the proper construction of cl 21. A narrow construction may preclude, or at least create unnecessary complexity, in the making of workplace flexibility agreements if it does not allow for a crib break during which an employee performs some, perhaps modified, duties. In many workplaces, it may be mutually advantageous to provide a crib break of a fixed duration during which an employee is relieved of performing any duty for a fixed period of time, but, during which, he or she may be recalled at any time to perform all or some of his or her duties. However, that arrangement may be impractical or less advantageous to employer and employee alike in other workplaces. Much will depend on the nature of the particular workplace. In larger, closely supervised workplaces with clearly and objectively defined outputs or performance benchmarks, a crib break of a certain length may be provided at fixed times with little room for argument about when it is necessary to resume duties. Other workplaces may be largely self‑organised and have service standards which are not susceptible to quantitative benchmarking, but depend instead on qualitative assessments. Moreover, the intensity of work may ebb and flow. In workplaces of those kinds it may be practical and of mutual benefit to take crib breaks whilst still performing less demanding duties.
In the conditions described in the evidence at the AYTC, it is not difficult to imagine considerable inconvenience if the crib breaks were to be prescribed as a 30-minute break during which an employee was only available to be recalled to duty if necessary. It might only be possible to accommodate a crib break of that kind by staggering the times at which different employees took a crib break. That might create practical problems in the supervision of the youths, and be less convenient for youth services officers, than the arrangement described in the evidence.
The point of this discussion is not to reach a definitive conclusion as to whether the breaks allowed to youth workers at the AYTC are, as a matter of fact, crib breaks. The Court acknowledges that there is a qualitative aspect to a crib break beyond gulping down food or drink. The underlying purpose of the crib break, and the opportunity to take sustenance, is to allow some recuperation. The point is that there are likely to be workplaces in which food and drink can be taken in a way which is recuperative whilst still performing some duties. At least there is no reason to assume that there could not possibly be any such workplace. The evident purpose of the 2014 EA, to maximise workplace flexibility, is best achieved by a broad construction of cl 21 which would allow for making a workplace arrangement to that effect where it is appropriate.
Returning to the text of cl 21.5.1 of the 2014 EA, the phrase ‘remaining on duty or available for duty and if necessary will resume the performance of duties’ reflects the general entitlement to remuneration of workers who are either performing, or are ready, willing and able to perform, work. The appellants put textual and contextual submission against a construction which allows for a crib break in the former case. First, they submit that in the use of the expression ‘on duty’ cl 21.5.1 engaged the distinction in employment law between being on duty and performing work. However, if, as the appellants contend, ‘on duty’ means on duty but not performing any work, for all practical purposes it bears the same meaning as being available for duty and is therefore superfluous. The Court acknowledges the appellants’ submission that the phrase ‘on duty or available for duty’ is intended to convey a single concept of being on duty but not performing work. However, the disjunctive ‘or’, and the different connotations of being on duty and available for duty suggest otherwise. There is a critical distinction between a crib break and a meal break. During a meal break an employee is not on duty, is therefore not liable to be recalled, and indeed is entitled to make himself or herself unavailable to be recalled. By contrast, when on a crib break an employee must stand ready to perform work as required. The purpose of the phrase ‘on duty or available for duty’ is to emphasise that distinction. It is not its purpose to stipulate that no work at all can be performed when on a crib break.
The distinction made in cl 21.5.1 reflects the concept of a crib break found in the authorities. In Duncan’s Holdings Limited v Desmond Keith Cross & Ors Willcox J observed:[1]
A “crib break” … is a period during which the employee may “down tools” and eat but must remain in the immediate workplace and available in case of any emergency … the crib break … is paid time; that is because the employee remains on duty throughout.
[1] (1997) 76 IR 261 at 263-264.
It is observed here that under cl 21 of the 2014 EA the recall extends beyond emergencies to whenever there is a need to resume the performance of duties.
In Australian Workers Union v Department of Primary Industries and Resources Judge Gilchrist, in the South Australian Industrial Relations Tribunal, said:[2]
In my view what differentiates a crib break from an unpaid meal break is that whilst on a crib break the employee is paid and is on call. Thus the fact that Mr Cavallo and Mr Thelning, when taking a crib break could not with any certainty predict that they would not be called upon to resume duties does not in my view mean that they were not taking a crib break. I think that the Award provision will be satisfied if following an interruption the employee is able to resume his or her break and ultimately has an aggregate of twenty minutes during which the employee is able to consume food and drink.
[2] [2007] SAIRC 60 at [38].
It should be understood that the issue in that case was not whether some duties might be performed on a crib break. It was whether, under the particular clause there in question, quarantine inspectors were provided with a 20-minute crib break, even though it was interrupted, such that several breaks of shorter duration could be taken if they, in total, constituted 20 minutes.
Secondly, the appellants submit that grammatically the words ‘and if necessary will resume the performance of duties’ qualify both ‘remaining on duty’ and ‘available for duty’. The Court does not accept this submission. The use of the auxiliary verb ‘will’ as a command, or to describe the concurrent state of readiness of an employee on a crib break, is a more apt qualifier of the phrase ‘available for duty’ than ‘remaining on duty’. The Court construes cl 21.5.1 to mean that there is a crib break when an employee takes sustenance whilst on duty or whilst ‘available to resume duty when necessary’.
In any event, the phrase has work to do even if it also qualifies the phrase ‘remaining on duty’. Obviously enough, the capacity of a worker to perform all, or at least some, of his or her duties whilst taking food or sustenance is reduced. In the case of youth workers at the AYTC that is most obviously the case when they resort to the staff room. It is also the case when they are eating with the detainees at meal times. They cannot monitor the detainees’ conduct as well when they are eating as when they are not eating; nor can they move to quell a disturbance until they have put down their cutlery or beverage. The phrase ‘resume the performance of duties’ is therefore applicable, and has work to do, whether a worker is on duty or on‑call. An employee who is on duty whilst eating with the detainees, or in the staff kitchen, may need to resume the full range of his or her duties if and when the need arises. There are undoubtedly many other jobs covered by the 2014 EA in which similar circumstances prevail. A quarantine or weighbridge inspector, for example, may still need to monitor for oncoming traffic whilst taking a crib break. Whether the more limited duties performed allow, as a matter of fact, the taking of sustenance to be characterised as a crib break is, as earlier explained, a different question.
The appellants’ rejoinder to this construction is that the drafters of the 2014 EA could simply have used the expression ‘whilst performing duties’ if that is what was intended. It is always possible to postulate clearer ways in which a provision may have been expressed, but it is inherent in the very concept of being on duty that all or some of the duties are being discharged, and that may include performing work.
Finally, the appellants contend that on the construction of the Full Bench an employer will have no reason to offer a break during which an employee is relieved of the performance of all duties. That is not so. The advantage to an employer of a meal break is that it is not paid. There are many jobs in which an employee’s productivity will be so greatly reduced whilst eating, and with respect to which the employer’s business would not be disrupted by such a break, that it will be advantageous to provide an unpaid meal break. Indeed, the 2014 EA recognises that unpaid meal breaks will be the norm.
In an allied submission, the appellants put that there are many jobs in the public service in which workers have a beverage or snack whilst working as, or perhaps more, productively, than when they are not taking sustenance. They submit that if ‘remaining on duty’ is construed to mean performing any work, a worker is on a crib break whilst at his or her desk taking an occasional sip of coffee, tea or water. That submission conflates the question of construction of cl 21.5.1 of the 2014 EA, whether it is a necessary condition for the taking of a crib break that the worker be free of all work duties, with the question of fact whether a worker is on a crib break in the particular circumstances of their job. That question of fact, as earlier observed, requires a qualitative evaluation of all of the employment circumstances. An appeal to this Court lies only on a question of law. Whether or not the Full Bench erred on the question of fact whether the opportunities given to the youth workers to take food or drink was a crib break or not is not before this Court.
Conclusion
The Court dismisses the appeal.