Federal Court of Australia

King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Paragraph 1 of the orders of 18 August 2020 and paragraph 4 of the orders of 21 August 2020 are set aside, and in their place the Court declares in answer to the questions posed in paragraph 1 of the orders of 12 December 2019 as follows:

(a)    Question 1: Between 29 May 2012 and 28 May 2018, was the applicant’s employment with the first respondent:

(i)    covered by the Fitness Industry Award 2010; or

(ii)    covered by the Sporting Organisations Award 2010; or

(iii)    covered by the Miscellaneous Award 2010; or

(iv)    not covered by any of the above awards?

Answer: Between 29 May 2012 and 28 May 2018, the applicant’s employment with the first respondent was covered by the Fitness Industry Award 2010.

(b)    Question 2: If one of the above awards covered the applicant’s employment, which classification covered the work he performed?

Answer: The Level 4 classification covered the work that the applicant performed.

3.    The balance of the issues in the proceeding are remitted to the primary judge for trial.

4.    There is to be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal against the primary judge’s decision on a preliminary question. The appellant, Mr King, was employed as a swim coach by the first respondent, Melbourne Vicentre Swimming Club Inc (Club) between 2006 and 2018. Mr King made claims under the Fair Work Act 2009 (Cth) against the Club and other respondents which were, in part, based on the Fitness Industry Award 2010 (Award). The primary judge declared that Mr King was not covered by the Award during his employment with the Club and gave judgment for the respondents in relation to specified parts of the statement of claim. Since the orders followed the trial of a preliminary issue, they were interlocutory in nature which meant that leave to appeal was required. Leave to appeal was granted on 12 November 2020.

2    The issue for determination on the appeal is whether Mr King’s employment fell within a particular award classification. This turns on two questions of construction of the Award. The first is whether general wording in the Award pertaining to the seniority of a relevant employee meant that Mr King was covered by the Award or whether he needed to meet the description provided by the more specific wording about the work, qualifications and experience of swim coaches. The second question is whether, if Mr King did need to meet that more specific wording, swim coaches who exceed the specified level of work, qualifications and experience are not covered by the Award.

3    For the reasons that follow, we agree with the primary judge that the first question should be resolved in favour of the respondents, that is, the appellant did need to meet the specific wording about the work, qualifications and experience of swim coaches. However, we respectfully differ from his Honour on the second question. Although Mr King did need to meet the specific wording of the Award, on its proper construction that wording did not exclude employees with higher levels of work, qualifications and experience. The result is that Mr King’s employment was covered by the Award during the relevant period.

Background of the parties and the claim

4    The following facts were uncontroversial and are drawn from the primary judge’s reasons.

5    The Club is a not-for-profit incorporated association. It operates a swim school and a swim club. The school runs learn-to-swim courses taught by swim teachers. At the swim club, people are trained in the sport of swimming by swim coaches. The swim school is run at the Korowa Anglican Girls’ school in Glen Iris, Victoria and the swim club trains mostly at the Melbourne Sports and Aquatic Centre in Albert Park.

6    The Club offered a range of swim squads, from entry level squads (for participants who had recently graduated from a learn-to-swim course) through to elite swimmers (including some competing in the Olympic Games and other international competitions). The level and duration of the training provided increased as the squads increased in seniority.

7    Mr King commenced employment with the Club on 22 August 2006 and his employment was terminated on 28 May 2018. The period covered by his claim is the last six years of his employment, being 29 May 2012 to 28 May 2018. He was employed full time throughout that period. He coached swimmers at the Melbourne Sports and Aquatic Centre. He reported to the Head Coach at the Club, and on occasion acted in that position when the Head Coach was absent.

8    During that period, Mr King coached squads that were, broadly, in the middle range of seniority among the squads offered by the Club. There is some doubt as to whether he coached entry level squads (compare primary judgment (PJ) [23] with PJ [36]) but, on the construction of the Award we favour, nothing turns on that. In any event, Mr King did not coach the most senior squad.

9    One squad Mr King coached was the MVC Junior Squad, comprised of swimmers ranging from 7 to 12 years of age, who had not at the beginning of the season qualified to compete in the State championships. Some members of that squad would qualify during the season, others were just participating for social reasons. Mr King’s evidence was that the members of this squad were starting to compete for the first time. They were still learning correct swimming techniques and were being introduced to the basics of competitive swimming such as diving and tumble turn techniques. But Mr King also coached a more senior squad, known as the National Age Squad, the members of which were very capable and competitive swimmers.

10    When Mr King started coaching at the Club, he held a Bronze Licence swim coaching qualification issued by the Australian Swimming Coaches and Teachers Association (ASCTA). In April 2010 he obtained a Silver Licence. We will now turn to place the ASCTA qualifications in the industry context of the Award.

Industry context

11    We have already made an implicit distinction between swim schools and swim clubs. While there is not a sharp line between the two, as the primary judge observed, it is a broad division found in the swimming industry and reflected at the Club. The line is not sharp because there can be overlap where swim teachers coach lower level swim squads and swim coaches, particularly those with lower level qualifications, teach participants in learn-to-swim courses. Swim teachers are usually in the pool with the students. Swim coaches are usually coaching from the pool deck.

12    There are accredited providers of swim teacher qualifications and also a system of swim coach qualifications issued by ASCTA, although the latter qualifications are not accredited or recognised by the relevant regulator, the Australian Skills Quality Authority. During the relevant period, there were four levels of swim coaching qualifications. In ascending order of seniority they were:

    Junior Squad and Assistant Coach qualification;

    Bronze Licence;

    Silver Licence; and

    Gold Licence.

There was also a title of Platinum level coach which was not accompanied by the issue of any licence, but was conferred on coaches who held a Gold Licence and had coached a swimmer who had won an individual medal at an Olympic Games or World Championship meet.

The Award

13    The Award was made under the Workplace Relations Act 1996 (Cth). It commenced operation on 1 January 2010. Pursuant to transitional provisions, it is taken to be a modern award for the purposes of the Fair Work Act. A person does not contravene a term of a modern award unless the award applies to the person, and a modern award does not give a person an entitlement unless the award applies to the person: Fair Work Act, s 46. There was no dispute between the parties that the Award applied to the Club as an employer. The dispute was whether Mr King had any entitlement under it. The answer to that question depended on whether he was an employee covered by the Award (s 47(1)(a)) which itself depended on whether the Award was expressed to cover him in relation to his particular employment by the Club: see s 48(1) and s 48(5).

14    The terms of the Award were not precisely the same throughout the period covered by Mr King’s claim, but the parties agreed that the differences were not material so that the following terms, in force between 4 December 2013 and 9 July 2018, can be taken as the terms on which the preliminary issue is to be determined for the entire period.

15    Clause 4 provided that the Award covered “employers throughout Australia engaged in the fitness industry and their employees in the classifications in this award …”.

16    Clause 3.1 defined “fitness industry” as follows, with (e) and in particular (f) being relevant here:

fitness industry means the operation or provision of:

(a)    fitness centres;

(b)    fitness services or classes;

(c)    group fitness organisations;

(d)    weight loss/control centres;

(e)    aquatic centres;

(f)    aquatic services or classes;

(g)    indoor sports centres;

(h)    golf driving ranges;

(i)    dance centres;

(j)    martial arts centres; and

(k)    recreational camps.

17    The National Employment Standards found in Part 2-2 of the Fair Work Act, and the Award, contained the minimum conditions of employment for employees covered by the Award: cl 6.

18    Clause 16 provided:

The classification structure and definitions for this award are set out in Schedule B - Classification Structure and Definitions. An employer must advise an employee in writing of their classification on commencement and of any changes to their classification.

There was no evidence of Mr King ever having been advised of his classification in accordance with this term.

19    The classification structure provided for nine levels of employee, from Level 1 to Level 7, with the addition of a Level 3A and a Level 4A. Clause 17 provided for minimum wages for the relevant period. While at trial Mr King claimed in the alternative that he fell into different levels, on appeal his claim was confined to Level 4. At that level, the Award provided for a minimum weekly wage of $754.30 and a minimum hourly wage of $19.85: cl 17.1(c).

20    In order to appreciate the issues of construction (described in the next section), it is necessary to set out the classification structure in Schedule B in full:

 B.1    Level 1

B.1.1    An employee at this level works under direct supervision with specific instructions and procedures and after appropriate in-house training. Duties may include any or all of the following:

(a)    general counter duties including reception, taking bookings, members and membership enquiries, sale of products, activities organising and customer liaison;

  (b)    general tidying/cleaning of immediate work area;

  (c)    undertaking structured training/learning in the following areas:

(i)    clerical assistant duties including switchboard operation, reception, information services, taking bookings;

(ii)    providing general assistance to employees of a higher grade, not including cooking or direct service to customers;

(iii)    cleaning, tidying and setting up of kitchen, food preparation and customer service areas, including cleaning of equipment, crockery and general utensils;

(iv)    assembly and preparation of ingredients for cooking;

(v)    handling pantry items and linen;

(vi)    setting and/or wiping down tables, removing food plates, emptying ashtrays and picking up glasses;

(vii)    general cleaning, gardening and labouring tasks; and

(viii)    door duties, attending a cloakroom or car park not involving the handling of cash.

 B.2    Level 2

B.2.1    An employee at this level has completed 456 hours training at Level 1 so as to enable the employee to perform work within the scope of this level or has a swim teacher or coach qualification.

 B.2.2    An employee at this level:

(a)    performs work above and beyond the skills of an employee at Level 1 and to the level of their training; and

(b)    works from instructions or procedures and under direct supervision either individually or in a team environment, and is primarily engaged in one or more of the following duties:

(i)    with classes and directing activities in a centre;

(ii)    attending to equipment and displays, e.g. pool attendant;

(iii)    providing customer advice, sales and services;

(iv)    operating a switchboard and/or telephone paging system;

(v)    clerical duties, involving intermediate keyboard skills with instructions;

(vi)    program/ticket selling and general sales involving receipt of monies and giving change, including operation of cash registers, use of electronic swipe input devices;

(vii)    laundry and/or cleaning duties involving the use of cleaning equipment and/or chemicals;

(viii)    maintaining general presentation of grounds;

(ix)    door duties, attending a cloak room or car park;

(x)    serving from a snack bar, buffet or meal counter;

(xi)    supplying, dispensing or mixing of liquor, including cleaning of bar area and equipment, preparing the bar for service, taking orders and serving drinks;

(xii)    non-cook duties in a kitchen;

(xiii)    beginner swimming and water safety teacher, being a holder of any current qualification with the following competencies:

SRC AQU 0003B Respond to an aquatic emergency using basic water rescue techniques;

SRC AQU 0008B Apply the principles of movement in water to aquatic activities;

SRC AQU 010B Instruct water safety and survival skills;

SRC AQU 009B Instruct the strokes of swimming; and

SRC CRO 007B Operate in accordance with accepted instructional practises, styles and legal and ethical responsibilities.

(xiv)    coaching beginner swimmers (including mini and junior squads), being a holder of a current Australian Swimming Coaches and Teachers Association (ASCTA) Junior Squad and Assistant Coach qualification or equivalent.

 B.3    Level 3

B.3.1    An employee at this level works under general supervision which requires operation within defined areas of responsibility with adherence to established guidelines and procedures and who is employed to carry out work associated with the centre’s operations.

B.3.2    An employee at this level is able to fulfil a role at Level 1 and 2 where relevant and supervises Level 1 and 2 employees where requested.

 B.3.3    An employee at this level may also be:

(a)    an intermediate an intermediate [sic] swimming and water safety teacher, being a holder of any current qualification with competencies detailed in clause B.2.2(b)(xiii) above, who has:

(i)    performed 12 hours per year of recognised workshops and 250 hours of swimming and water safety teaching and who holds a second recognised instructing qualification, or

(ii)    delivered 350 hours of swimming and water safety teaching; or

(b)    a coach of beginner swimmers (including mini and junior squads), being a holder of a current ASCTA Bronze Licence for Coaching or equivalent.

(c)    a pool lifeguard who has completed a nationally-recognized Lifeguarding qualification, and has been appointed to the position of pool lifeguard by the employer.

 B.4    Level 3A

 B.4.1    An employee at this level performs the duties of a Level 3 and who:

(a)    holds an [sic] Fitness Industry AQF Certificate Level III qualifications [sic] relevant to the classification in which they are employed or equivalent; and

(b)    utilises the skills and knowledge derived from the Fitness Industry AQF Certificate Level III competencies relevant to the work undertaken at this level.

B.4.2    Any dispute concerning an employee’s entitlement to be paid at Level 3A may be referred to Fair Work Australia for determination. Fair Work Australia may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from the Fitness Industry Certificate III competencies, and that these are relevant to the work the employee is doing.

 B.5    Level 4

B.5.1    An employee at this level works under limited supervision and guidance and is required to exercise initiative and judgment in the performance of their duties and who is employed to carry out work associated with the centre’s operations.

B.5.2    An employee at this level receives broad instructions and their work is checked intermittently.

B.5.3    An employee at this level may also be:

(a)    an experienced swimming and water safety teacher, being a holder of any current qualification with the competencies detailed in clause B.2.2(b)(xiii) above, who has:

(i)    performed 12 hours per year of recognised workshops and 500 hours of swimming and water safety teaching and who holds a third recognised teaching qualification, or

(ii)    delivered 700 hours of swimming and water safety teaching; or

(b)    a coach of beginner swimmers (including mini and junior squads), being a holder of a current ASCTA Bronze Licence for Coaching or equivalent, who has:

(i)    performed 12 hours per year of recognised workshops and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months, or

(ii)    delivered 700 hours of coaching beginners.

(c)    a senior pool lifeguard, being a holder of industry-recognized pool lifeguard qualifications and who has been appointed by the employer to lead a team comprised of qualified pool lifeguards, and/or persons undertaking a nationally-recognized course of Lifeguarding to become pool lifeguards.

 B.6    Level 4A

 B.6.1    An employee at this level performs the duties of a Level 4:

(a)    holds a Fitness Industry AQF Certificate Level IV qualifications [sic] relevant to the classification in which they are employed or equivalent;

(b)    utilises the skills and knowledge derived from the Fitness Industry AQF Certificate Level IV competencies relevant to the work undertaken at this level.

B.6.2    Any dispute concerning an employee’s entitlement to be paid at Level 4A may be referred to Fair Work Australia for determination. Fair Work Australia may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from the AQF Certificate Level IV competencies, and that these are relevant to the work the employee is doing.

 B.7    Level 5

 B.7.1    An employee at this level:

(a)    holds a Fitness Industry AQF Diploma level or equivalent;

(b)    utilises the skills and knowledge derived from the Fitness Industry AQF Diploma Level relevant to the work undertaken at this level;

(c)    is employed to carry out work associated with the classification of Fitness Trainer or Fitness Specialist; and

(d)    has demonstrated an ability to train or develop programs for special groups.

B.7.2    An employee at this level exercises high levels of initiative and judgment with broad instruction in the performance of their duties. An employee at this level would be able to supervise Level 4 employees where requested.

 B.8    Level 6

 B.8.1    An employee at this level has duties which include but are not limited to:

(a)    supervision of front desk, including customer liaison and rostering of front office staff;

(b)    supervision, training and co-ordination (including rostering) of employees within their respective work area to ensure delivery of service;

(c)    those of a trade qualified person in a single trade stream and the giving of trade directions to Level 1 to 5 employees;

(d)    supervision of floor staff; or

(e)    overseeing the day to day activities and operations of the business.

 B.9    Level 7

B.9.1    An employee at this level is engaged in supervising, training and coordinating employees, is responsible for the maintenance of service and operational standards and exercises substantial responsibility and independent initiative and judgment with a requisite knowledge of their specific field and of the employer’s business.

B.9.2    An employee at this level has:

(a)    worked or studied in a relevant field and/or has specialist knowledge, qualifications and experience;

(b)    formal trade or technical qualifications relevant to the employer in more than one trade or technical field, which are required by the employer to perform the job; or

(c)    specialist post-trade qualifications which are required by the employer to perform the job and organisation or industry specific knowledge sufficient for them to give advice and/or guidance to their organisation and/or clients in relation to specific areas of their responsibility.

 B.9.3    Indicative duties at this level are:

(a)    general supervision of catering or retail functions;

(b)    centre administration involving supervision of staff and systems and co-ordinating events; or

(c)    development of in-house training programs for instructors and co-ordinators.

B.10    Employees classified under the provisions of B.2.2(a), B.2.2(b), B.3.3, B.4.1, B.5.3, B.6.1, B.7.1, B.8.1, B.9.2 will hold, at all times, the relevant accreditations required by both this award’s classification descriptors and state and territory legislation permitting work with children (e.g. Child Protection Police Checks). In the event of any employee losing, having suspended, or being refused such accreditation, they will advise their employer(s) within 14 days of such loss, refusal or suspension.

The primary judgment

21    On 12 December 2019 the primary judge made orders for the determination of the following questions in a separate hearing:

(1)    During the relevant period, was Mr King’s employment covered (or not covered) by the Award (by the time of trial the parties accepted that other awards that were the subject of the orders did not cover Mr King’s employment).

(2)    If the Award covered Mr King’s employment, which classification covered the work he performed?

That hearing was held over four days.

22    Mr King’s main submission to the primary judge was that his employment was within Level 5 of the Award and, if not, 4A or 4. There was also an alternative submission that if the Court found that he was not covered by Level 4 throughout the entire period, it should at least find that he came within that level in the final year of his employment, when he coached the MVC Junior Squad. Neither party contended that Mr King fell within any of the levels above Level 5.

23    Mr King’s first submission about Level 4 was that he was covered by reason of cl B.5.1 and cl B.5.2 of the classification schedule.

24    The Club did not dispute that Mr King met the criteria in those clauses, namely that he worked under limited supervision and guidance, was required to exercise initiative and judgment in the performance of his duties, was employed to carry out work associated with the Club’s operations and received broad instructions, and his work was checked intermittently.

25    The Club submitted, however, that Mr King did not come within Level 4 because he did not meet the criteria in cl B.5.3, in particular cl B.5.3(b), which concerns swim coaches. The Club’s submission was that meeting the requirements as to supervision, initiative and the like found in cl B.5.1 and cl B.5.2 was not enough. The first contentious point of construction, then, was whether a swim coach who satisfied the general criteria in cl B.5.1 and cl B.5.2 was nevertheless also required to satisfy the specific requirements in cl B.5.3.

26    The focus of that dispute was on the meaning of the words “may also be” in the chapeau to cl B.5.3. Did they indicate that the function of cl B.5.3 was just to give further guidance about the operative provisions in cl B.5.1 and cl B.5.2, or was compliance with cl B.5.3 necessary for a swim coach to be covered under Level 4?

27    Mr King’s position about that was straightforward enough: to say that an employee “may also be” someone who meets the specific criteria is to imply that the employee need not meet the criteria in order to find coverage under Level 4. The Club sought to meet that prima facie construction by submitting that the phrase used was “may also be” rather than, for example, “must also be”, because to use the latter words would be to exclude a range of employees in other parts of the fitness industry who had no connection with the specific swim school and aquatic centre (pool lifeguard) criteria in cl B.5.3.

28    A further submission Mr King made to the primary judge was that, if it was necessary for a swim coach to comply with cl B.5.3(b), that clause only imposed a “floor” and not a “ceiling”. That is, while an employee may:

    need to be at least “a coach of beginner swimmers (including mini and junior squads)” and “a holder of a current ASCTA Bronze Licence for Coaching or equivalent” (cl B.5.3(b)); and

    must have at least:

(i)    have “performed 12 hours per year of recognised workshops and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months” (cl B.5.3(b)(i)); or

(ii)    have “delivered 700 hours of coaching beginners” (cl B.5.3(b)(ii)),

the employee would still come within Level 4 if he or she worked at a higher level (for example by coaching advanced swimmers) or had a higher qualification (for example a Silver Licence), or had greater experience than that specified.

29    The respondents’ submission on this was that cl B.5.3(b) operated as both a floor and a ceiling. They submitted that Mr King’s level of work (coaching more advanced swimmers) and qualification (Silver Licence) meant he exceeded the criteria in cl B.5.3(b) and so did not fall within Level 4 and was not covered by the Award.

30    After summarising the parties’ submissions about these points, the primary judge set out in considerable detail the history of the making of the Award, which had been the subject of detailed submissions from the parties. We will survey that history in briefer terms below.

31    When he came to determine the questions of construction, the primary judge preferred the position advanced by the respondents. His Honour referred to two features of the context of cl B.5.3 in Schedule B to the Award. The first was that the “architecture of the classification structure” (PJ [135]) made express reference to swim teachers and coaches in three escalating levels of qualifications and experience from Level 2 to Level 4. Level 3 provided for the same qualifications for swim teachers as Level 2, but introduced additional requirements relating to workshops, hours of teaching and a further qualification. At Level 3, swim coaches required the same qualifications as Level 2, but Level 3 also added a further requirement (ASCTA Bronze Licence or equivalent). Level 4 similarly built on Level 3. In relation to swim teachers, Level 4 required a third qualification, a higher level of experience and more hours spent in workshops. In relation to swim coaches, Level 4 reproduced the Bronze Licence requirement, but also required further hours of workshops and coaching experience. And there is no classification above Level 4 that makes any express reference to swim teachers or coaches or associated qualifications.

32    The second feature of the context of cl B.5.3 to which the primary judge referred was the requirement in cl B.10 that employees classified under specific provisions of the schedule, including cl B.5.3, will hold at all times the accreditations required under those items, and State or Territory working with children accreditations, and will advise their employer if those accreditations are lost or suspended. In his Honour’s view, this clause fortified the specific criteria in cl B.5.3(b).

33    The primary judge’s conclusion as to what was indicated by “may also be” was (at PJ [137]):

The specific and detailed provisions that bring swimming coaches into the classifications in level 4 tell against treating the general words of clauses B.5.1 and B.5.2 as being provisions that can be engaged by swimming coaches independently of the more specific provisions and their prescriptive requirements. For that reason, I construe the specific provisions as confining the generality of the preceding sub-clauses in relation to the subject matter of the specific provisions, which relevantly includes swimming coaches. The words ‘may also be’ are therefore to be construed as introducing independent requirements relating to qualifications and experience that must be satisfied by swimming teachers, coaches, and lifeguards, in order that they fall within classification level 4. In relation to swimming teachers, coaches, and lifeguards, the sub-clauses of clause B.5.3 are the controlling provisions, and the operation of the general provisions in B.5.1 and B.5.2 is to be adjusted accordingly. The same analysis applies to the corresponding provisions for the level 3 classification.

34    The primary judge went on to find that Mr King had not coached “beginner swimmers” during the relevant period, including the last season. After considering that term in context, his Honour concluded construed it “as a reference to those swimmers who have learned to swim so as to achieve some level of competency, but not those who are competing at a level where they are vying for state qualification times, or those who have achieved such times”: PJ [141]. After surveying the evidence, his Honour concluded that Mr King’s squads could not be characterised as “beginner swimmers”. In relation to the requirement for a swim coach to hold a Bronze Licence or equivalent, his Honour inferred that since Mr King held a Silver Licence, his Bronze Licence was superseded and so ceased to be current.

35    The primary judge did not accept the submission that the relevant criteria were minimum criteria only which were met by Mr King’s superior qualifications and experience. At PJ [145] his Honour said:

I do not consider that the text and structure of the Award, which is quite prescriptive in the relevant respects, should be construed as covering higher qualifications than those specifically referred to, when there is nothing in the text to support a conclusion that employees with higher levels of qualification, such as Silver and Gold Licences, who were engaged in the coaching of higher grades of swimmers, such as squads comprising swimmers with state and national qualifying times, were captured by the Award.

His Honour considered that it was “too much of a strain to construe the text of the Award as bringing within its coverage coaches with higher qualifications, or coaches of squads above the level of beginner swimmers”: PJ [146].

36    The primary judge went on to reject Mr King’s alternative submissions about Level 4A and Level 5 (now abandoned).

Grounds of appeal

37    There were two grounds of appeal. The first was to the effect that the primary judge should have held that Mr King was within Level 4 of the Award and that his Honour erred in finding that the words “may also be” required Mr King, as a swim coach, to meet the criteria in cl B.5.3. The first ground also contends that his Honour’s approach to construction was “overly rigid and narrow” and that his Honour should have found that Mr King was covered by the relevant Victorian award before the introduction of the Award and that this was relevant to the construction of the Award.

38    The second ground of appeal concerned his Honour’s findings about the final year of Mr King’s employment with the Club, challenging the factual findings that Mr King was not a coach of beginner swimmers and that he was not the holder of a current Bronze Licence or equivalent. The ground contends that his Honour should have found that the MVC Junior Squad comprised “beginner swimmers” and that, as the holder of a Silver Licence, Mr King was the holder of a Bronze Licence or equivalent.

39    Neither ground squarely raises the argument that the specific requirements in cl B.5.3 were minimum requirements only. The second ground touches on the argument in the contention it makes about the Silver Licence, but does not articulate the broader construction and is confined to the last year of employment. Nevertheless, the argument was made before the primary judge, counsel for Mr King did put it squarely in oral submissions in the appeal, and counsel for the respondents engaged with the point without objection. In these circumstances, this Court may (and should) consider the argument.

Principles of construction of awards

40    The principles governing the construction of awards are well-established and the primary judge’s exposition of them was not challenged on appeal. The construction of an industrial instrument depends on its language, understood in light of its industrial context and purpose: see Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). In City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379, French J said (most citations removed);

The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words. The words are to be read as a whole and in context. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all. The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. … That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503:

it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result … from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.

41    We agree with the primary judge’s observation (at PJ [127]) that:

Practices in the relevant industry may provide material context. An illustration is Transport Workers Union v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54, where Tracey J held that evidence about the morning commencement time of work in the transport industry, together with an examination of the history of relevant award provisions, informed the construction of the term ‘day shift’ with the consequence that ordinary day workers were not to be regarded as shift workers for the purposes of the award, and were therefore not entitled to ‘crib time’.

42    Hence the framers of documents such as awards may well have been more concerned with expressing their intention in a way likely to be understood in the relevant industry rather than with legal niceties or jargon, so a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) applying Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J). An award may be read that way despite mere inconsistencies or infelicities of expression which might tend to some other reading, and “meanings which avoid inconvenience or injustice may reasonably be strained for”: Kucks at 184.

43    The circumstances may lead the court to conclude that a clause in an award is a product of history; in such circumstances it may be possible to discern the purpose of the award only by reference to its history: see Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J). But there are limits to that; as the primary judge said in the present case (at PJ [128]-[129]), the texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non-compliance with an award can expose a person to pecuniary penalties: see Wanneroo at 380.

Must a swim coach come within the specific provisions in order to be covered?

44    This is the first issue of construction, which is raised by ground 1: can a swim coach like Mr King qualify for coverage at Level 4 if he or she meets the general requirements as to supervision and initiative in cl B.5.1 and cl B.5.2, or must a swim coach also meet one of the three alternative sets of specific criteria in cl B.5.3? It was common ground that Mr King did satisfy those general requirements, but the respondents submitted that to be covered he would also need to satisfy one of the criteria in cl B.5.3.

45    We agree with the primary judge that this issue of construction must be resolved in favour of the respondents.

46    That result follows from what his Honour called “the architecture of the classification structure”. It is a structure which starts with a description of Level 1 as covering an employee who works under direct supervision and then goes on to list, in an evidently non-exhaustive way, disparate kinds of duties which an employee at that level may have. Those duties are different kinds of manual or clerical work for which an employee would not need any externally conferred qualification.

47    Then, at Level 2, there are specific requirements for hours of training completed or having a swim teacher or coach qualification: cl B.2.1. Clause B.2.2(a) provides that an employee at Level 2 “performs work above and beyond the skills of an employee at Level 1 and to the level of their training”. The higher levels of skills and training are reflected in higher rates of pay. Clause B.2.2(b) then says that an employee at Level 2 works from instructions or procedures and under direct supervision and is primarily engaged in one or more listed duties. Many of the duties have nothing to do with swimming; the Award covers the fitness industry, broadly defined. But among the duties, at cl B.2.2(b)(xiii), are “beginner swimming and water safety teacher” being a holder of any current qualifications with certain specified competencies. These include such competencies as “SRC AQU 0003B Respond to an aquatic emergency using basic water rescue techniques” and “SRC AQU 010B Instruct water safety and survival skills”. There is also a swim coach qualification specified at cl B.2.2(b)(xiv) which requires a current ASCTA Junior Squad and Assistant Coach qualification or equivalent.

48    At Level 2 a bifurcation is thus observed between what could be called swim and non-swim ways of coming within Level 2. Read in context, the “or” in cl B.2.1 appears to connect two alternatives, either an employee who has completed 456 hours training at Level 1 or a person who has a swim teacher or coach qualification. The reference to “a swim teacher or coach qualification” can only be a reference to the specific qualifications in cl B.2.2(xiii) and (xiv). Nor, in light of the importance of water safety, could it be supposed that someone who had received 456 hours training at Level 1 in, say, “clerical assistant duties” (cl B.1.1(c)(i)) could be covered by Level 2 if they then went on to coach swimming without any ASCTA qualification. The specific qualifications are qualifications which an employee must have if they are teaching or coaching swimming and are to be covered by Level 2.

49    The structure of the Level 3 requirements is different to that of Level 2, but in our view the same bifurcation can be observed. Obviously, an employee at Level 3 has greater responsibilities and pay than employees at Level 2, and possibly more experience and higher qualifications. Clause B.3.1 describes the level of responsibility which an employee at Level 3 must have. Clause B.3.2 provides that an employee at Level 3 is able to fulfil a role at Level 1 and Level 2 “where relevant”. In contrast with Level 1 and Level 2, there is no specific description of duties, skills or experience for Level 3, save in relation to one area: swimming.

50    That is found at cl B.3.3. Why does that clause single out swim teaching, coaching or lifeguard functions in connection with specific lists of qualifications when other jobs will only find coverage under the general provisions about supervision and initiative? The specific criteria must have work to do. It cannot be just to guard against the contingency that some swim teachers, coaches and lifeguards may not meet the general requirements as to supervision found in cl B.3.1 and cl B.3.2. By the nature of the roles — out on the pool deck or in the pool itself — their work is unlikely to require or permit close supervision.

51    Instead, the answer is found in the fact that swim teaching and coaching roles directly concern the safety of individuals. Many of the students and competitive swimmers will be children. It is hardly to be supposed that the framers of the Award intended that an employee who has no experience or qualifications as a swim coach can obtain coverage at Level 3 by acting in that role, merely because the employer chooses to let the employee, in the words of cl B.3.1, work “under general supervision”. To read the Award that way would be to impute an intention to its framers that an employee with no qualifications can start acting as a swim coach and so be entitled to Level 3 coverage. That is not a sensible way to read it. The same may be said of the swim teacher and pool lifeguard functions. And no doubt there are other responsibilities associated with these functions that are important, if less urgent than safety. For example, students of an unqualified swim teacher could end up with eccentric swimming technique or no technique at all.

52    A specific textual indication of the policy behind these provisions of the Award is that cl B.2.1 requires a Level 2 employee to have completed 456 hours of training or to have a swim teacher or coach qualification. It is inconceivable that the intention of the Award is to require those qualifications for a Level 2 employee but not for a Level 3 employee who is entitled to a higher wage.

53    The requirement for a swim coach to hold specific qualifications is supported by cl B.10. That clause requires persons who are covered under various specified clauses of the Award to “hold, at all times, the relevant accreditations required by both this award’s classification descriptors and state and territory legislation permitting work with children (e.g. Child Protection Police Checks)”. This indicates that the framers of the Award were concerned to ensure that swim coaches held necessary accreditations such as a Bronze Licence. And the need for clearance for working with children is obvious. Yet, cl B.10 requires a person who is classified under cl B.3.3 and cl B.5.3 to hold those accreditations, but does not require that for a person classified under cl B.3.1 or cl B.5.1. So, if an employee did not meet the specific requirements of cl B.3.3, but was supervised at the general level described in cl B.3.1, the Award would not require the employee to have any working with children accreditation, even while coaching children. The deliberate omission of cl B.3.1 and cl B.5.1 from cl B.10 could even support an interpretation that a person obtaining coverage under those clauses is not required to have working with children accreditation. Once again, that is a not a sensible way to read the provisions.

54    The structure of the Level 4 requirements is the same as those for Level 3; only the levels of experience are different. The above observations about Level 3 also apply to Level 4.

55    Viewed in all that context, the words “may also be” in Level 3 and Level 4 should not be understood to convey that it is optional for a swim teacher, swim coach or pool lifeguard covered at the relevant level to have the qualifications and experience specified in cl B.3.3 or cl B.5.3 as the case may be. Instead, those words convey that an employee may be at the relevant level either because he or she works at the requisite level of supervision and is not a swim teacher/swim coach/lifeguard or because he or she is a swim teacher/swim coach/lifeguard with the particular specified qualifications or experience. The word “may” expresses the contingency of the nature of the employee’s role — it may or may not be swim-related. It does not provide an optional condition for those in swim-related roles. The language is perhaps infelicitous, but when the purpose of the provisions is understood in the context of the classification structure as a whole, that is how it must be understood.

56    For completeness, we note that this bifurcation, and indeed any specific mention of swim-related qualifications at all, does not appear above Level 4. There are Levels 4A and 5 which require specific fitness industry qualifications. Those qualifications are clearly mandatory for those levels to apply, which is consistent with the need for persons teaching fitness to have the skills necessary to minimise risk of injury to participants and to achieve other important objectives. Then there are Levels 6 and 7 which do not necessarily require specific qualifications but are broadly focussed on the level of the employee’s functions in supervising others. The classifications in Schedule B to the Award seek to achieve a number of different things with a number of different kinds of employees. But that does not detract from the above analysis.

Did Mr King come within the specific requirements of cl B.5.3?

57    Since Mr King’s employment by the Club needed to come within cl B.5.3 to be covered at Level 4, the next question is whether it did come within that clause. This gives rise to the second issue of construction which determines the outcome of the appeal: does that clause describe both minimum and maximum requirements for coverage at Level 4 or minimum requirements only?

58    The question of construction arises because there is no doubt on the facts that Mr King exceeded the qualifications and experience described in cl B.5.3(b). To recap, those qualifications were:

    a coach of beginner swimmers (including mini and junior squads);

    being a holder of a current ASCTA Bronze Licence or equivalent,

who has either:

o    performed 12 hours per year of recognised workshops and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months; or

o    delivered 700 hours of coaching beginners.

59    To be covered, an employee must fulfil the first two of these requirements as well as either of the third or the fourth. The Club accepted that Mr King satisfied the last two (and as will be seen, that concession is relevant). The focus of the factual dispute was whether Mr King was a coach of beginner swimmers and whether he held a current ASCTA Bronze Licence or equivalent.

60    Mr King attempted to persuade the Court that he did, in fact, only coach beginner swimmers and that he was, in fact, the holder of a current Bronze Licence. But those attempts were, with respect, unconvincing. We have described some of the squads Mr King coached above. As we have said, they were broadly in the middle range of seniority. He coached children who were competing at a national level. Some of his swimmers qualified to compete in State championships. He also coached a senior squad of capable and competitive swimmers.

61    Mr King contended that there was no meaning of “beginner swimmers” that was generally accepted in the industry and so submitted that the term “means nothing”. But the words must be given meaning and there is no difficulty in ascertaining what that meaning is. There is no need to go to dictionary definitions to conclude that a beginner is someone who is just starting out in a field of endeavour. In the present context, it would mean someone who is just starting to swim competitively and to receive training for that purpose. There was evidence that swimmers in “mini” or “junior” squads would fit that description.

62    It may be that the members of the MVC Junior Squad who, on Mr King’s evidence, were starting to compete for the first time and were still learning correct swimming techniques met the description of “beginner swimmers”. But on any view, the State and national championship swimmers whom he also coached did not meet that description. In terms of the level of proficiency and experience of many of his swimmers, Mr King exceeded the requirements of cl B.5.3(b). While he may also have coached some “beginner swimmers”, that was not the major and substantial aspect of his work by which his award coverage falls to be determined: see e.g. Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]-[66] (Bromberg J).

63    As for the other essential criterion, an ASCTA Bronze Licence, Mr King submitted that a Bronze Licence was somehow included in the Silver Licence he in fact held. The evidence was that it is necessary to hold a Bronze Licence in order to apply for and obtain a Silver Licence, and it may be inferred that the skills required for the latter build on those required for the former. But it does not follow from those things that the holder of a current Silver Licence is also the holder of a current Bronze Licence. If a Silver Licence has been issued, it is unlikely that the Bronze Licence is current. When Mr King received his Silver Licence, he was told he could destroy his Bronze membership card and replace it with his new card.

64    There is no need to reach for strained interpretations and applications of the straightforward language of cl B.5.3(b). That is because we accept the broader submission that the provision only prescribes minimum requirements for a swim coach to be covered by Level 4. This follows, once again, from the architecture of the classification structure. We have already described significant aspects of that architecture in the preceding section. In substance, the Award contemplates escalating levels of qualifications and experience among swim coaches and others. Clause B.2.2(xiv) sets the minimum level of responsibilities and experience a swim coach must have to be covered by the Award, namely coaching beginner swimmers and holding a current ASCTA Junior Squad and Assistant Coach qualification or equivalent. These are to be understood as minimum requirements because there is no swim coaching role at Level 1.

65    The “ceiling” on the Level 2 swim coach role is then found in the “floor” for that role at Level 3. That is, if the employee holds a Bronze Licence or equivalent, he or she will have coverage at Level 3 and so no longer have coverage at Level 2. That is the only difference between the swim coach qualifications for Level 2 and the swim coach qualifications for Level 3. So once an employee acting in that capacity obtains his or her Bronze Licence, the employee becomes covered by Level 3.

66    The next level is 3A, which centres on a Fitness Industry AQF Certificate Level III. On appeal, Mr King did not press any argument that he had coverage under that level so it may be passed over.

67    The relevant requirements for Level 4, which is the one Mr King claims covered him, set the ceiling for Level 3. The licensing requirement does not change. It still refers to the holding of a current Bronze Licence. Nor does the level of swimmers coached change. It is still beginner swimmers (including mini and junior squads). What differentiates a Level 4 swim coach from a Level 3 one is, on the one hand, either the performance of 12 hours per year of recognised workshops, 500 hours of coaching beginners and attendance at a recognised seminar/conference within the past 12 months and, on the other, 700 hours of coaching beginners. Once any one of those criteria is satisfied, the employee passes into Level 4.

68    A number of textual and contextual indications support the view that those requirements do not provide an exhaustive description of the qualifications, coaching responsibilities and experience of a Level 4 swim coach so that if an employee exceeds those requirements he or she is not covered by the Award.

69    First, there is no express indication that the criteria are maximum requirements as well as minimum ones. And in contrast to boundaries between Level 2 and Level 3, and between Level 3 and Level 4, there is no higher level specific to swim coaches, the minimum for which sets a maximum for Level 4. So there is nothing in the Award which sets a “ceiling” for Level 4.

70    Second, some of the criteria in cl B.5.3 cannot sensibly be understood as maximum requirements. A coach who has delivered 700 hours of coaching beginners does not fall outside Level 4 as soon as he or she has delivered the 701st hour. That is why it is relevant that the Club accepted that Mr King did not fall outside cl B.5.3(b)(i) or (ii) (as distinct from the chapeau to cl B.5.3(b)). That acceptance is an inevitable result of acknowledging that those sub-paragraphs cannot sensibly be read as setting both minimum and maximum requirements. That begs the question of why the other requirements should be read that way.

71    Third, it is unlikely that a change in the employee’s level for one of the two criteria in the chapeau would take the employee outside Level 4. Suppose, for example, that a coach has a Bronze Licence and coaches exclusively beginner swimmers including mini and junior squads. Suppose she obtains her Silver Licence, but continues to coach the same swimmers. From the point of view of her employer, the function she fulfils is exactly the same. It would be odd if she was no longer covered solely because she had a more advanced licence. One illustration of the oddity is that it would give the employee an incentive not to obtain a Silver Licence. It is difficult to see why either employers or employees in the swimming industry would want that.

72    Fourth, the way in which the Bronze Licence criterion is expressed — “being a holder of a current ASCTA Bronze Licence for Coaching or equivalent”— connotes that it is a minimum requirement only. It directs attention to the contingency that the person is not the holder of a Bronze Licence or any licence at all, or that the Bronze Licence is no longer current. There was evidence that the licences issued by ASCTA were accompanied by annual licence cards with expiry dates, with accreditation lost if the licence holder ceased to be a member of ASCTA. Evidently, the concern is that, if the qualification is lost, the employee would no longer be covered by Level 4 (and Level 3). That bespeaks a minimum requirement, not a maximum one.

73    Fifth, there is no apparent reason why the framers of the Award would have wanted swim coaches to be excluded because the substantial purpose of their employment is to coach swimmers who are no longer beginners. There is, for example, no basis in the evidence to think that a coach of middle-ranking competitive swimmers enjoys greater negotiating power, so that he or she does not need the protection of an award. There was evidence that swim coaches often have more secure employment than swim teachers, are often employed on a permanent (full time or part-time basis), and are usually ex-swimmers with a strong understanding of the industry. But there was no evidence that there was any difference in those respects between a coach of beginner swimmers and a coach of more advanced swimmers or between the holder of a Bronze Licence and the holder of a Silver or Gold Licence.

74    In truth, the evidence showed a degree of fluidity in the hierarchy of the industry which belies any suggestion that such differences entailed superior bargaining power. For example, the High Performance swim coach for the Club, Craig Jackson, gave evidence that a coach who ran a state development squad, containing swimmers moving from beginners to intermediate in their ability, would usually hold a Junior Squad or Assistant qualification or a Bronze Licence. On the Club’s preferred construction, a person who has only the first of these qualifications, the lowest level offered by ASCTA, would lose coverage if he or she coached intermediate swimmers. It can be inferred from Mr Jackson’s evidence about the various squads which the Club ran that most of the swimmers at a swim club are not beginner swimmers. If the intention behind the Award had been to exclude coaches who coach most of the swimmers at a club, one would expect it to have said so clearly.

75    Sixth, there is room in the Award for swim coaches who have achieved further career progression to have coverage. Clause B.8.1(b) confers Level 6 coverage on employees whose duties include “supervision, training and co-ordination (including rostering) of employees within their respective work area to ensure delivery of service”. Similarly, cl B.9.1 and cl B.9.2 recognise that an employee who supervises, trains and coordinates employees and who has specialist knowledge and experience or formal technical qualifications or specialist post-trade qualifications, will have Level 7 coverage. These criteria can cover swim coaches with higher qualifications and experience in the field. That negates the submission made by the Club that reading Level 4 as setting out maximum requirements for coverage reflects the approach, not uncommon in industrial instruments, that, once an employee reaches a certain level of seniority, he or she no longer needs the protection of the instrument. If that submission were correct, a coach could pass out of coverage on obtaining a Silver Licence, say, only to recover it after reaching even higher levels of seniority within the industry.

76    For these reasons, we respectfully disagree with the primary judge that it is a strain to construe the text of the Award as bringing within its coverage coaches with higher qualifications or coaches of squads above the level of beginner swimmers. The Award does not expressly say that the requirements of a Bronze Licence and the coaching of beginner swimmers are both the “floor” to Level 4 and also its “ceiling”. It does not set any express ceiling to Level 4 at all. And in light of the matters we have described, we do not consider that the Award sets such a ceiling by implication either. It is no strain on the language to construe the criteria as minimum requirements only, just like those in Level 2 and Level 3.

77    It follows that Mr King’s Silver Licence and duties coaching intermediate and senior swimmers did not take him outside the coverage of Level 4. He fulfilled the minimum requirements for that level and did not fulfil the requirements for any higher level, so he was covered by Level 4 during the relevant period.

The history of the Award

78    At the trial of the preliminary issue the parties devoted a great deal of attention to the antecedents to, and history of, the Award, and his Honour summarised their submissions in detail. His Honour did not, however, consider that there was anything particular about the antecedent awards that had any determinative bearing on the construction of the Award: PJ [132]. We find ourselves in the same position. Nevertheless, in deference to the submissions of the parties, it is appropriate to give a broad description of the history of the Award and make some brief observations about it.

79    In 2005 the Queensland Industrial Relations Commission made the Health and Fitness Centres, Swim Schools and Indoors Sports Award - Queensland - 2005 (2005 Queensland Award), which captured swim schools and aqua facilities. Its focus in that regard was on swim teaching, as distinct from coaching, although it did contain wording as to the requirement for a Level 3 employee to have an “Australian Swimming Inc. Bronze Coaching Licence” and a level of workshop attendance and hours of coaching “junior squads” which is similar to the requirements found in cl B.5.3(b) of the Award. While submissions were also made about predecessor New South Wales and Victorian awards in the fitness industry, they made no specific mention of swim teachers or coaches and so do not assist.

80    The Award which is the subject of this appeal emerged from the award modernisation process. In 2009 the Australian Industrial Relations Commission (AIRC) sought submissions in relation to awards including a modern award that covered the fitness industry. The Liquor, Hospitality and Miscellaneous Workers Union (LHMU) made a submission noting that the AIRC proposed to make a modern award subsuming several existing awards, including the 2005 Queensland Award. The LHMU proposed to define the fitness industry to include aquatic centres and the management and/or operation of facilities of an aquatic nature. The industry body, Fitness Australia, proposed a definition of the fitness industry which also covered facilities of that kind. The classification structure that Fitness Australia proposed, however, focussed on fitness instructors and trainers and the like and made no specific mention of swim teachers or swim coaches.

81    At around the same time, however, ASCTA and Swimming Australia made a submission in favour of a stand-alone modern award for swim schools, separate to a general fitness industry award. The proposed award would be a Swim School Industry Award, and as the name suggests, would be focussed on swim schools and swim teachers. It had a definition of its industry coverage (cl 4.1) as:

employers throughout Australia in the Swim School and Swim Coaching Industry. Swim School and Swim Coaching Industry means all employees and employers who are engaged in or in connection with or in or about Swim Schools and Associated facilities.

82    The proposed award had a classification structure derived from the 2005 Queensland Award. It is similar to the structure in the Award, but not the same. In particular, “indicative tasks” described for swim coaches at Level 3 were:

Coaching beginners (includes mini and junior squads); being the holder of a current Swimming Australia Ltd. Bronze Licence for Coaching or equivalent and has:

(i)    performed 12 hours per year of recognised ‘workshops’ and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months; or

(ii)    delivered 700 hours of coaching beginners.

Level 4 was defined by reference to the level of the employee’s supervision and ability to coordinate others, with a requirement that the employee “shall have aggregate skills and experience and qualifications required of Level 2 and Level 3 operatives”. The proposed award expressly excluded from coverage persons employed in connection with the professional development, training or coaching of elite athletes: cl 4.3. It appears from a submission made by the LHMU in September 2009 that Fitness Australia was, by that stage, also proposing a definition of the industry which included coaching swim squads “up to competition level (excluding elites [sic] athletes)”.

83    In September 2009 the AIRC published a statement in relation to the award modernisation process: [2009] AIRCFB 865. This dealt with several proposed modern awards. It said that the AIRC had decided to make an exposure draft called the Fitness Industry Award 2010 which would cover, among other things, aquatic centres and aquatic services or classes. At [97] it said of that proposed award:

The classification structure for the draft award was largely agreed between the LHMU and Fitness Australia. With respect to the areas of disagreement we have decided to provide for an introductory level employee at level 1 and a level 7 employee who is engaged in supervising, training and co-ordinating, other employees as proposed by the LHMU. Swimming teacher and coach classifications have also been incorporated into the classification structure. The minimum wage rates attached to the classification structure reflect those advanced by Fitness Australia. An annual leave loading has also been provided for in the draft award.

84    The Award was made on 4 December 2009 (with the version relevant to this appeal having been made on 4 December 2013).

85    The following emerges from this brief summary of the history of the making of the Award:

    The relevant wording of the classification structure, including of cl B.5.3(b), originated in the 2005 Queensland Award. The focus of that award was on swim schools, and the references to beginner swimmers are explained by that focus.

    The first version of the Award proposed to the AIRC by the LHMU concerned fitness instruction and training and did not deal specifically with swim coaches.

    The classification structure of the 2005 Queensland Award was the basis of a separate award proposed by the swim school industry which, once again, focussed on swim teachers. But it also referred to coaches. The levels of experience and qualifications now essentially found in Level 4 of the Award were described as “indicative tasks” only, suggesting that there was no intention to exclude from coverage those who had more experience or better qualifications. That is confirmed by the way those at Level 4 of this proposed award were, as described above, required to have the “aggregate skills and experience and qualifications required of Level 2 and Level 3 operatives”, indicating that those skills, experience and qualifications were minimum requirements with the additional criteria as to supervision and coordination of others bringing the employee into Level 4.

    There were proposals for the new award to exclude coverage of those training elite athletes. Those exclusions are not found in the Award. That fact is equivocal for present purposes. It could be taken to indicate that the AIRC wanted all swim coaches to be covered. Or it could indicate that the specific exclusion was unnecessary because the requirements in Level 4 of the Award were maximum criteria so that an elite swim coach would fall outside that level and outside the award.

    The AIRC chose not to make a stand-alone swim school award, but combined the classification structure of that proposed award with the structure for the broader fitness industry, hence the bifurcated structure of the Award at Levels 2, 3 and 4.

86    All this provides a historical explanation for the current wording of the classification structure in the Award. A stand-alone award, dealing with, but not exclusive to, swim schools was combined with a broader fitness industry award. But while that might explain why, in fact, the Award ended up the way that it did, it sheds little light on what should be taken objectively to be the intention manifested in the text of the Award. It may provide an explanation for the bifurcated structure we have discerned from the text. But as we have said, the decision not to expressly exclude trainers of elite athletes is equivocal on the key question of whether more senior and experienced coaches such as Mr King were covered. And, although the 2005 Queensland Award may not have treated the qualifications and experience criteria as the beginning and the end of award coverage for swim coaches, it would be wrong to assume that the same intention should be read into the different language of the Award.

87    There will of course be cases where the history of an industrial instrument sheds light on constructional choices presented by its text, so as to illuminate meanings that might otherwise be obscure. This is not one of those cases. Like the primary judge, and despite the time spent on the matter in submissions, we do not consider that the antecedents and genesis of the Award provide much assistance in determining its proper construction. We have already alluded to the concern that employers and employees in an industry should be able to understand awards without recourse to detailed historical investigation. Such recourse is unnecessary here.

Notice of contention

88    The notice of contention contained two grounds. The first sought to support the primary judge’s construction of the words “may also be”. Since we have indicated our agreement with that construction in the course of dealing with ground of appeal 1, there is no need to address this ground of the notice of contention. The second ground of the notice of contention says that the conclusion that Mr King was not covered by the Award was “inevitable, and should be affirmed, because a major and substantial aspect of his role fell outside the classifications” and therefore outside the Award. We have already disposed of this contention in the course of disposing of the appeal: no major and substantial aspect of Mr King’s role fell outside the classifications on our construction of them.

Disposition

89    The appeal should be upheld, albeit on a basis not clearly articulated in the grounds of appeal. The notice of contention is dismissed. Paragraph 1 of the orders of 18 August 2020 and paragraph 4 of the orders of 21 August 2020 should be set aside. In their place, the questions posed in the orders of 12 December 2019 should be answered as follows:

(1)    Between 29 May 2012 and 28 May 2018, the applicant’s employment with the first respondent was covered by the Fitness Industry Award 2010.

(2)    The Level 4 classification covered the work that the applicant performed.

90    The matter will be remitted to the primary judge for the trial of the balance of the issues in the proceeding.

91    Mr King did not apply for costs, nor did the Club. Having regard to the terms of s 570 of the Fair Work Act, there will be no order as to costs.

Associate:

Dated:    15 July 2021