FEDERAL COURT OF AUSTRALIA

King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173

ORDERS

THE COURT DECLARES THAT:

1.    Between 29 May 2012 and 28 May 2018, the applicant’s employment with the first respondent was not covered by the Fitness Industry Award 2010, the Sporting Organisations Award 2010, or the Miscellaneous Award 2010.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant is a swimming coach who was employed by the first respondent, Melbourne Vicentre Swimming Club Inc (ABN 78 315 337 803) (MVC), between 2006 and 2018. One issue in dispute between the parties in this proceeding is whether for the period 29 May 2012 to 28 May 2018 the applicant’s employment by MVC was covered by the Fitness Industry Award 2010 (Award), and if so, in which classification. The applicant claims that he was covered by the Award, and he seeks a declaration to that effect and an order for the payment of additional remuneration to which he alleges he was entitled, amongst other claims and relief. MVC denies that the applicant was covered by the Award and it seeks a declaration accordingly. As award coverage is a central issue in the proceeding, I made orders that the question of coverage be tried as a separate issue.

2    For the following reasons, I have found that the applicant’s employment was not covered by the Award during the claim period, and a declaration to that effect shall be made.

Procedural history

3    The relevant history of this proceeding may be summarised as follows.

4    By an originating application filed on 30 August 2018 and a statement of claim filed on 29 October 2018, the applicant claims that MVC contravened several provisions of the Fair Work Act 2009 (Cth) in relation to his employment. The applicant alleges a contravention of s 45 of the Act, alleged to arise because MVC failed to pay him in accordance with the Award. That underpayments claim is predicated on MVC’s failure to pay penalty rates and allowances alleged to be owing under the Award, in particular a penalty rate for the applicant working split shifts with an insufficient break between shifts. The applicant also alleges contraventions of the general protections provisions in Part 3-1 of the Act, alleged to arise because MVC took forms of adverse action against him for prohibited reasons, and because MVC knowingly or recklessly made misrepresentations to him about his workplace rights. Further, the applicant alleges that the additional respondents to this proceeding, who are natural persons, were knowingly involved in certain of MVC’s contraventions, such that they are liable as accessories under s 550 of the Act.

5    By a defence filed on 3 December 2018, the respondents deny all of the alleged contraventions.

6    By an interlocutory application filed on 11 October 2019, the applicant sought that the Court determine the preliminary issue whether the applicant’s employment with MVC during the claim period was covered by the Award. After hearing submissions at the hearing of the interlocutory application on 12 December 2019, I considered that there was at least a real prospect that the proceeding might be managed more efficiently by the Court first determining the preliminary issue, and therefore on balance, I determined that was the appropriate course.

7    Following the interlocutory hearing, the Court made orders for the filing of evidence and submissions directed to the preliminary issue, and fixing a hearing of the preliminary issue. The orders stating the questions for separate hearing and determination extended to whether the applicant’s employment with MVC during the claim period was covered by the Sporting Organisations Award 2010 or the Miscellaneous Award 2010. It is now agreed between the parties that those awards did not cover the applicant’s employment. Therefore, the only issue for determination is whether the applicant’s employment by MVC during the claim period was covered by the Award, and if so, in which classification.

8    The hearing of the preliminary issue was originally fixed for 26 March 2020. However, in response to the impact of the COVID-19 pandemic on the Court’s functions, it was re-fixed for 16 July 2020 and conducted by way of videoconference using the Microsoft Teams platform. The length of the hearing of the preliminary issue exceeded the parties’ and the Court’s estimate, but this is no criticism of counsel for the parties, who presented their cases with appropriate attention to detail. During the hearing, the Court invited counsel for the parties to proffer draft declarations that they submitted should be made upon acceptance of their respective submissions. For the following reasons, the Court shall make a declaration in the terms sought by the respondents.

Background facts

9    The facts that are relevant to determining the preliminary issue are relatively limited, when compared to the broader range of disputed facts that would likely be raised in a trial of the whole of the proceeding. Focussing on the applicant’s claim period, the background facts are largely uncontroversial.

10    The applicant relied upon three of his own affidavits, being his first affidavit affirmed on 9 December 2019, his second affidavit affirmed on 13 January 2020, and a third unsworn affidavit dated 15 July 2020, which was treated as a witness statement in keeping with the Court’s special measures in response to the COVID-19 pandemic, and which was adopted by the applicant in evidence-in-chief. The applicant was cross-examined.

11    The respondents read four affidavits to the Court, being: (1) an affidavit of Mr Brendon Ward affirmed on 19 February 2020; (2) an affidavit of Mr Craig Jackson affirmed on 20 February 2020; (3) an affidavit of Mr Benjamin Baumgarten affirmed on 21 February 2020; and (4) an affidavit of Mr Brian Stehr affirmed on 27 February 2020. Mr Ward is the Chief Executive Officer of the Australian Swimming Coaches and Teachers Association (ASCTA), and he gave evidence about ASCTA and the swimming industry, including swim teaching and swim coaching qualifications, and the pathway for swimmers up the swimming squad hierarchy. Mr Ward was cross-examined. Mr Jackson is a Platinum level swimming coach, who coached the High Performance Squad at MVC at relevant times, and is currently employed by Swimming Australia. In the latter part of the applicant’s claim period, Mr Jackson was the Head Coach at MVC. Mr Jackson gave evidence about MVC’s operations, including the structure of the swim squads offered by MVC, and the applicant’s work as a swim coach at MVC. Mr Jackson was cross-examined. Mr Baumgarten is a solicitor at Colin Biggers & Paisley, who has carriage of this proceeding on behalf of the respondents. Mr Baumgarten produced a number of documents relating to award coverage of the fitness industry. He was not cross-examined. Mr Stehr is the Vice President and a member of the board of ASCTA, and a swim club owner and head coach. Mr Stehr gave evidence about the pathway for swimmers up the swimming squad hierarchy. Mr Stehr was not cross-examined.

12    The parties did not put the credit of any of the witnesses in issue. I formed the view that the applicant and each of the other witnesses who was cross-examined did his best to give reliable evidence.

MVC

13    MVC is a not-for-profit incorporated association. MVC has been one of the most successful swimming clubs in Australia, with many swimmers who have trained with MVC representing Australia at the Commonwealth Games and at the Olympic Games. At times relevant to the applicant’s claim, MVC operated both a swim school, at which participants principally engaged in learn to swim courses taught by swimming teachers, and a swim club, at which participants principally trained in the sport of swimming and were coached by swimming coaches. MVC operated its swim school at Korowa Anglican Girls’ School in the suburb of Glen Iris in Melbourne. MVC operated its swim club primarily at the Melbourne Sports and Aquatic Centre (MSAC) in the suburb of Albert Park in Melbourne, with some lower level swimming squads also operating at Korowa.

The applicant’s employment with MVC

14    On 22 August 2006, the applicant commenced employment with MVC as a swimming coach engaged as a casual employee. By that time, the applicant already had many years’ experience working as a swimming coach for other employers. In or around April 2007, the applicant’s employment with MVC changed to an engagement as a full-time employee. On 28 May 2018, the applicant’s employment with MVC was terminated. The claim period spans the final six years of the applicant’s employment with MVC, being 29 May 2012 to 28 May 2018.

15    During his full-time employment with MVC, including the claim period, the applicant worked as a swimming coach based at MSAC. The applicant’s work was principally performed on the pool deck coaching swimmers, which included developing swimmers’ skills, technique, and general fitness and strength. The applicant’s work also included designing swimming training programs, coordinating coaching sessions, and attending swimming competitions and championships. The general pattern of the applicant’s work was to coach in the early morning and again in the afternoon on Mondays to Fridays, and in the morning on Saturdays, and also to attend swimming competitions and championships that were often held on the weekend. That applicant’s underpayments claim is focussed on penalty rates and allowances alleged to arise as a result of that general pattern of work. Further details of the applicant’s coaching duties, including the particular squads that the applicant coached during the claim period, are set out later in these reasons.

Swim teaching and swim coaching accreditations

16    In broad terms, the swimming industry in Australia is divided between swim schools, at which swimming teachers teach participants how to swim in learn to swim courses, and swim clubs, at which swimming coaches coach participants in the sport of swimming. That broad division was reflected at MVC. However, there is not always a bright line between swim schools and swim clubs, or between swimming teachers and swimming coaches. In particular, there may be some overlap, whereby accredited swimming teachers coach lower level swim squads, and swimming coaches, particularly those with lower level swim coaching qualifications, teach participants how to swim in learn to swim courses.

17    Swimming teachers are usually in the water while teaching, so that they can perform demonstrations and ensure the safety of participants. Swimming teachers generally hold a swimming and water safety teacher qualification. There are several providers of such a qualification, the two biggest of which are ASCTA, and the Australian Council for the Teaching of Swimming and Water Safety (AUSTSWIM). The ASCTA and AUSTSWIM teaching qualifications are approved and accredited by the Australian Skills Quality Authority (ASQA), which is the Australian national regulator for vocational education and training, and thereby those qualifications are recognised within the Australian Qualification Framework (AQF).

18    Swimming coaches are usually on the pool deck while coaching, where they instruct participants on the correct techniques for the four swimming strokes, and further participants’ development in the sport of swimming with a view towards competing at swim meets. Swimming coaches generally hold a swim coaching qualification. There are four levels of swim coaching qualifications, and a swim coach must begin at the bottom of the coaching qualification ladder and advance up the qualifications one rung at a time. To attain a qualification, a swim coach must complete a course that includes a theory component and practical workshops, and satisfy other criteria. The swim coaching qualifications are not, and have never been, approved and accredited by ASQA, or recognised in the AQF. At the relevant time, the four levels of swim coaching qualifications, listed from most junior to most senior, were as follows:

(1)    the Competitive Swimming or Competitive Strokes qualification (formerly called the Junior Squad and Assistant Coach, or Green Licence, qualification);

(2)    the Bronze Licence (now called the Development Licence);

(3)    the Silver Licence (now called the Advanced Licence); and

(4)    the Gold Licence (now called the Performance Licence).

19    In addition, there is a further title of Platinum level coach. Unlike the four qualifications set out above, there is no official licence issued to Platinum level coaches. Rather, a Platinum level coach is a coach who holds a Gold Licence, and who has coached a swimmer who has achieved an individual medal at an Olympic Games or World Championship meet.

MVC’s swim squads

20    During the claim period, MVC offered a range of swim squads for members to join. Those swim squads were organised according to swimming ability, beginning with an entry level squad for participants who had recently graduated from a learn to swim course, and ending with a squad of elite swimmers, which included swimmers competing in international competitions such as the Olympic Games.

21    The particular squads offered by MVC, and the coaches assigned to them, varied each swimming season, which ran from around June to May. However, the structure of the swim squads, and the pathway for swimmers to progress up the squad structure, remained broadly consistent throughout the claim period. Further, while the names given to the swim squads varied over time, the general squad composition, and the structure and approach to training for each squad, remained broadly consistent. The entry level squad did the least training, with the least number of training sessions per week, the shortest training sessions, the shortest average distance swum per training session, and no gym training. The level of training increased from squad to squad up to the most senior squad, with the number of training sessions per week, the length of the training sessions, and the average distance swum per training session all increasing, along with the introduction of and then increase in gym training.

The applicant’s swim coaching accreditations

22    It was agreed between the parties that when the applicant commenced coaching at MVC, he held a Bronze Licence swim coaching qualification, and that in April 2010, he obtained a Silver Licence swim coaching qualification, which he held throughout the claim period. The status of the applicant’s Bronze Licence after he obtained his Silver Licence was in dispute, and I shall address that issue later when considering whether the applicant’s employment with MVC during the claim period was covered by the Award.

The applicant’s coaching responsibility at MVC

23    It was accepted by the parties that during the claim period, the applicant coached squads that were within the middle of the structure of squads offered by MVC in each season. The applicant did not coach the entry level squad, nor did he coach the most senior squad. A question in issue is whether the applicant was coaching “beginner swimmers” during the claim period. That was particularly relevant as the relevant classification levels in the Award refer to a coach of “beginner swimmers”, as I shall examine later in these reasons.

24    The applicant gave evidence that prior to becoming a full-time employee of MVC, he was employed as a casual employee coaching MVC’s development and state development squads. When he became a full-time employee in April 2007, he began coaching the State Senior Squad as well. In around 2009, the applicant commenced coaching children competing at a national level, and continued to coach at or below this level until his employment was terminated.

25    The applicant produced an unsigned employment contract dated 10 May 2010, and stated that he did not believe that he had ever signed an employment contract. However, he stated that the position description contained in the unsigned contract broadly reflected his employment duties and responsibilities during his full-time employment at MVC. The position identified in the unsigned contract was “Coach – National Youth Squads”. The “principal purpose” was described as follows –

Planning, delivery and administration of the Club's Swimming Program (primarily) to the State Junior, National Youth Squad and the Target National Youth Squad.

26    The list of duties in the document was extensive. Under the heading “Swimming Program”, the duties were described as follows –

•    Develop and implement a comprehensive Swimming Program catering for all State, National Youth/Target National Youth swimmers assigned by the Head Coach

•    Assist the Head Coach to develop and implement a squad structure that effectively and efficiently delivers a comprehensive athlete pathway for all Club swimmers at each venue

•    Assist to design and deliver the swimming program for the Swimmers with a Disability (SWD)

•    Assist to design and deliver the swimming program for the open water swimmers

•    Assist the Head Coach to regularly assess swimmers

•    Assist the Club to design and monitor the Learn-to-Swim program underpinning its junior squad programs as well as support the LTS program

•    Assist, develop and support the Club's relationship with the MSAC Learn to Swim Program (LTS) and facilitate the process of swimmers moving from this program to the Club

•    Prepare data relating to swimmer performance and report for recommendations to the twice yearly review of the Swimming Program, monitoring effectiveness, arranged by the Head Coach

•    Support the participation and attend (as required) selected competitions within own squad cycles

•    Attend all MVC Club competitions as practicably possible

•    Assist the Head Coach to ensure consistency, teaching quality, progressions and alignment of programs within and between venues

•    Regularly liaise and review swimmer progress with their parents and arrange for twice yearly formal reviews with swimmers and them/their parents

27    The applicant gave evidence that he had assisted in MVC establishing its learn to swim program at Korowa in 2007-2008. However, there was no evidence that the applicant was engaged in MVC’s learn to swim program during the claim period.

28    The applicant reported to the Head Coach of MVC, and on several occasions during his period of full-time employment, he was appointed as the acting Head Coach for periods during which the Head Coach was absent.

29    Mr Jackson gave evidence about the names of the MVC squads, which varied from time to time, and about the squads that the applicant coached. Swimming programs and draft swimming programs of MVC show that between 2013 and 2017, the applicant coached squads at MVC known as the “Target National Age Squad’, the “National Age Squad”, and the “National Junior Squad”. The Target Age Squad comprised swimmers who had progressed through the State Age Squad, and who were aspiring to achieve a national time, that is, a qualifying time to enter the national titles. The National Age Squad comprised swimmers who regularly competed in a formal competition environment and were either swimming national times, or they were close to swimming such times. In the MVC handbook for 2017-2018, the National Age squad was described as –

A high performance squad, committed to quality performance at a National Aged level.

30    The National Junior Squad was an equivalent of the Target Age Squad. I accept the evidence of Mr Jackson in relation to the squads that the applicant coached between 2013 and 2017, which was not challenged in cross-examination, or contradicted by the applicant. I infer that, given that members of the squads were approaching or achieving national qualifying times, the swimmers were self-evidently very capable and competitive.

31    In the 2017-2018 season, the applicant coached the National Age Squad, to which I have referred above, and the MVC Junior Squad. The MVC Junior squad was referred to in the MVC handbook as follows –

The objective of the MVC Junior squad is to develop skills in all strokes and to aspire to qualify and perform well at Victorian Age Championships.

32    The applicant stated that the MVC Junior Squad comprised swimmers ranging in age from seven to 12 years of age, who had not qualified for the state age championships, although a number of them did qualify for the state championships during the season before moving up to the next squad. Many of the members of the squad were 10 years of age. There was a difference between the parties as to whether a majority of the squad were aged 10 and over, or 10 and under, which it is unnecessary to resolve: the composition of the squad varied over the course of the season, and the ages in years of some of the squad members increased as the season progressed.

33    The aim of the MVC Junior Squad was to attempt to attain qualifying times generally, although some swimmers were there for social reasons. The applicant stated that swimmers in the MVC Junior Squad were still learning the correct swimming techniques and were starting to compete for the first time, and were still being introduced to the basics of competition diving, tumble turns, and other competition rules.

34    The applicant stated that the MVC Junior Squad was one of the lowest level squads at MVC, and was focused on progressing swimmers from beginners to a point where they might achieve a state championship qualifying time in the future, at which point they would move into one of MVC’s state squads. The applicant also stated that the MVC Junior Squad was the equivalent of the State Development Squad as described in the MSAC Squad Program, which was a document available on MVC’s website. The MSAC Squad Program document described five levels of squads, including a Masters Squad for swimmers over the age of 18 years who were no longer competing regularly. The State Development Squad was described in the MSAC document as follows –

STATE DEVELOPMENT SQUAD: (MIN 4 – 5 SESSIONS/WEEK)

Swimmers at this level focus on refining their skills into race efficiencies and striving towards racing state qualifying times.

The increased training regime allows swimmers to refine speed, technique and stroke.

This squad focuses on learning how to train for state competitions.

35    Mr Jackson gave evidence that the MSAC document did not represent the squad structure at MVC during the time of the applicant’s employment, because it was produced by MSAC when it assumed responsibility for coaching after MVC experienced financial difficulties. While that may be so, I did not understand there to be any dispute about the applicant’s evidence that the MVC Junior Squad that he coached in 2017-2018 was the equivalent of the State Development Squad described in the MSAC document, and in particular, that the swimmers were striving towards racing state qualifying times.

36    The applicant stated that there were two squads beneath the MVC Junior Squad in the 2017-2018 season, which were known as the Livingstone Squad and the Rooney Squad. Those squads were both named after successful Australian swimmers who had trained with MVC. The applicant accepted that generally the Rooney Squad was the entry level squad for graduates from the learn to swim program.

The Fitness Industry Award

37    The Award was made on 4 December 2009 under Part 10A of the Workplace Relations Act 1996 (Cth), and commenced operation on 1 January 2010. By item 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (Cth), Part 10A of the Workplace Relations Act continued to have operation after the commencement of the Fair Work Act in relation to the award modernisation process that was then on foot, and by item 4 of Schedule 5 of the transitional provisions, a modern award made under the Part 10A award modernisation process is, for the purposes of the Fair Work Act, taken to be a modern award within the meaning of that Act. As the Award is taken to be a modern award for the purposes of the Fair Work Act, contravention of a term of the Award gives rise to a contravention of s 45 of the Act, which is a civil remedy provision.

38    The clauses of the Award that are central to determining the preliminary issue are set out below, and were in force between 4 December 2013 and 9 July 2018. That covers the majority of the claim period, which is 29 May 2012 to 28 May 2018. The parties agreed that the differences in the terms of the Award in force during the period from 29 May 2012 until 4 December 2013 are not material, and that the Court should determine the preliminary issue by considering the Award as in force between 4 December 2013 and 9 July 2018.

39    The coverage provision was contained in clause 4 of the Award, and relevantly stated –

4.    Coverage

4.1    This industry award covers employers throughout Australia engaged in the fitness industry and their employees in the classifications in this award to the exclusion of any other modern award.

…

40    That coverage provision contained two elements. First, the coverage of employers engaged in the “fitness industry”, and second, the coverage of those employers’ employees in the classifications in the Award. In relation to the first element, a definition of “fitness industry” was contained in clause 3.1 of the Award, which relevantly provided –

In this award, unless the contrary intention appears:

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.

[Underlined emphasis added.]

41    The parties accepted that MVC was an employer engaged in the fitness industry as defined, as it provided aquatic services or classes. Therefore, the sole issue for determination relates to the second element of the coverage provision, being whether the applicant’s employment fell within one of the classifications in the Award during the claim period. The classifications were contained in clause 16 and Schedule B of the Award. 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.

42    Schedule B set out the classifications –

Schedule B – Classification Structure and Definitions

[Sched B varied by PR999528, PR515150, PR531302]

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;

[B2.2(b)(xiii) substituted by PR999528 ppc 01Aug10]

(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.2    Level 3

[B.3 varied by PR999528; substituted by PR515150, PR531302 from 16Nov12]

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 supervisions 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 varied by PR999528; substituted by PR515150, PR531302 from 16Nov12]

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

(a)    holds an Fitness Industry AQF Certificate Level III qualifications 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 substituted by PR531302 from 16Nov12]

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 substituted by PR531302 from 16Nov12]

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 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 substituted by PR531302 from 16Nov12]

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 substituted by PR531302 from 16Nov12]

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 inserted by PR531302 from 16Nov12]

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 inserted by PR531302 from 16Nov12]

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 parties’ submissions

43    The parties’ submissions focussed on the proper interpretation of the elements that made up the classification levels, and their application to the applicant’s employment with MVC during the claim period. The parties also made further submissions in relation to the history of the Award, the industrial context, and other matters, to which I shall refer later. The core of the parties’ submissions as to whether the applicant’s employment fell within one of the classifications in the Award may be summarised as follows.

The applicant’s submissions

44    The applicant submitted that during the entirety of the claim period, his employment with MVC was covered by the Award. The applicant’s primary submission was that his employment fell within classification level 5, or alternatively classification level 4A, or in the further alternative, classification level 4. By his statement of claim and written submissions, the applicant’s claim extended to classification level 3A, classification level 3 and classification level 2. However, during the hearing, the applicant accepted that if the Court found that he was not covered by at least classification level 4, then the Court would not find that he was covered by those lower classification levels. By the structure of his alternative arguments, the applicant sought to maximise the quantum of his underpayments claim against MVC, as the Award provided for higher minimum wage rates for employees in higher classifications. However, during the hearing, the applicant’s submissions were focussed on his employment falling within classification level 4, and the applicant accepted that he faced additional difficulties in establishing that his employment fell within either classification level 4A or classification level 5. For that reason, I shall first address the parties’ submissions as to whether the applicant’s employment fell within classification level 4, before turning to whether his employment fell within classification level 4A or classification level 5.

45    The applicant also made a further alternative submission that if the Court found that his employment was not covered by the Award during the entirety of the claim period, the Court should nonetheless find that he was covered by classification level 4 during his final season at MVC when he coached the MVC Junior Squad.

The applicant’s classification level 4 submissions

46    Taking the elements of classification level 4 in turn, the applicant submitted as follows.

47    First, in relation to clauses B.5.1 and B.5.2, the applicant submitted that those clauses formed the operative part of the terms of the classification level, which the applicant was required to satisfy, and that that he satisfied the conditions contained in those clauses. MVC did not dispute that the applicant satisfied the conditions in clauses B.5.1 and B.5.2 throughout the claim period, which required that the applicant:

(1)    work under limited supervision and guidance;

(2)    exercise initiative and judgment in the performance of his duties;

(3)    carry out work associated with MVC’s operations; and

(4)    receive broad instructions, and that his work was checked intermittently.

48    Second, in relation to clause B.5.3 generally, the applicant characterised that clause as a “further guidance clause”, as distinct from the operative parts of the terms of the classification level in clauses B.5.1 and B.5.2, which the applicant submitted he was required to satisfy. The applicant emphasised that the chapeau of clause B.5.3 stated that an “employee at this level may also be”, rather than that an employee at this level must also be. The applicant submitted that the expression “may also be” was inclusionary, and not exclusionary or mandatory, such that it did not require an employee to meet any of the alternative conditions set out in clause B.5.3, and that it did not cover the field. In particular, sub-clause (b) related to swim coaches. That sub-clause captured 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”, relevantly in sub-clause (b)(ii), “delivered 700 hours of coaching beginners.” The applicant submitted that sub-clause (b) may impose a “floor” that swimming coaches must satisfy in order to meet the classification level, but that it did not impose a “ceiling”, such that if a swimming coach exceeded the conditions expressed in the sub-clause, that coach would fall outside of coverage. On that basis, the applicant submitted that the fact that for the entirety of the claim period, he held a Silver Licence rather than a Bronze Licence, and that for at least the large majority of the claim period, he coached swimmers who had arguably exceeded the status of “beginner swimmers”, did not place him outside this classification level. In support of that submission, the applicant made two argument by reference to the evidence. First, the applicant submitted that term “beginner swimmer” was not widely used in the swim coaching industry, and that instead those in the industry referred to development, state, national and elite swimmers. Second, the applicant contended that by holding a Silver Licence, he in effect still held a Bronze Licence, as he had the same competencies as a Bronze Licence coach, plus additional competencies. The applicant also submitted that it would be perverse for him to lose award coverage simply because he upgraded from a Bronze Licence to a Silver Licence, and that it was inconceivable that the classification structure of the Award was intended to operate with that effect. Finally, the parties agreed that the applicant had delivered 700 hours of coaching beginner swimmers before the claim period, so the requirement in sub-clause (b)(ii) was not in dispute.

The applicant’s classification level 4A submissions

49    Taking the elements of classification level 4A in turn, the applicant submitted as follows.

50    First, in relation to the chapeau of clause B.6.1, the applicant submitted that as he performed the duties of a level 4 employee, on the basis that he satisfied the conditions in clauses B.5.1 and B.5.2 of classification level 4 as set out in [47] above, he also satisfied the chapeau of clause B.6.1.

51    Second, the applicant also addressed the sub-clauses of clause B.6.1. In relation to sub-clause B.6.1(a), the applicant submitted that his Silver Licence was “equivalent” to a “Fitness Industry AQF Certificate Level IV” qualification. The applicant accepted that the Silver Licence swim coaching qualification was not itself recognised in the AQF, but submitted that the Court should find that it was equivalent to the Fitness Industry AQF at Certificate Level IV. In support of that submission, the applicant pointed to evidence that swimming coaches were required to undertake a demanding program to obtain a Silver Licence, and that upon obtaining his Silver Licence, he was encouraged by ASCTA to apply for recognition of his prior learning as a coach in the swimming industry towards a Certificate IV in Sport (Coaching). While the applicant did not specifically address sub-clause B.6.1(b), which relates to whether he utilised the skills and knowledge derived from his Fitness Industry AQF at Certificate Level IV competencies in his work, I shall treat his submissions as necessarily extending to a submission that he satisfied this sub-clause by using the skills and knowledge derived from his Silver Licence in his work as a swimming coach.

The applicant’s classification level 5 submissions

52    Taking the elements of classification level 5 in turn, the applicant submitted as follows.

53    First, in relation to clause B.7.1, the applicant submitted that he satisfied each of the conditions in the four sub-clauses, which are framed as necessary conditions by use of the word “and” between sub-clause (c) and sub-clause (d). In respect of those conditions, the applicant submitted as follows:

(1)    his Silver Licence was equivalent to a Fitness Industry AQF at Diploma level. For the purpose of meeting this higher equivalency, the applicant relied on the same arguments and evidence as he presented in relation to his submission at classification level 4A that his Silver Licence was equivalent to a Fitness Industry AQF at Certificate Level IV;

(2)    he used the skills and knowledge derived from his Silver Licence in his work as a swimming coach;

(3)    he was employed to carry out work associated with the classification of “Fitness Trainer” or “Fitness Specialist”. In respect of this condition, the applicant submitted that while those terms were not defined in the Award, and while he could not evidence that he did carry out work associated with the classification of a “Fitness Trainer” or “Fitness Specialist”, this condition should be read in the context of the whole of classification level 5, with emphasis placed on the higher qualification, initiative and judgment requirements in clause B.7.2 rather than the undefined terms “Fitness Trainer” and “Fitness Specialist” contained in this condition. Further, the applicant submitted that in the context of considering the coverage of a swimming coach such as himself, those terms should be understood as, in effect, “Aquatic Trainer” and “Aquatic Specialist“; and

(4)    he demonstrated an ability to train or develop programs for special groups which, although not the subject of any specific submissions, I take to be within the applicant’s case.

54    Second, in relation to clause B.7.2, the applicant submitted that the higher initiative, judgment and supervision requirements contemplated by that clause best reflected the nature and circumstances of his work with MVC during the claim period. Those requirements were that he exercised high levels of initiative and judgment with broad instruction in the performance of his duties, and that he would be able to supervise level 4 employees where requested.

The applicant’s submissions concerning his final season of 2017-2018

55    Finally, as an alternative to the above submissions, the applicant submitted that if the Court found that his employment was not covered by the Award during the entirety of the claim period, the Court should nonetheless find that he was covered by classification level 4 during his final season at MVC when he coached the MVC Junior Squad, together with the National Age Squad. This submission was focussed on satisfying sub-clause B.5.3(b), if the applicant’s above submissions were not accepted, on the basis that when he coached the MVC Junior Squad, the applicant was coaching “beginner swimmers”. The applicant submitted by reference to the evidence that the swimmers in the MVC Junior Squad were “beginner swimmers”.

The respondents’ submissions

56    The respondents submitted that during the entirety of the claim period, the applicant’s employment with MVC was not covered by the Award because his employment did not fall within any of the classifications. In response to the applicant’s submissions, the respondents focussed on the submission that the applicant was not covered by classification level 4, and also submitted that the applicant was not covered by either classification level 4A, or classification level 5. The respondents also disputed the applicant’s alternative claim that he was at least covered by classification level 4 during his last season at MVC when he coached the MVC Junior Squad.

The respondents’ classification level 4 submissions

57    Taking the elements of classification level 4 in turn, the respondents submitted as follows.

58    First, in relation to clauses B.5.1 and B.5.2 and as stated earlier, the respondents accepted that the applicant satisfied the supervision, initiative, and judgment conditions set out in those clauses.

59    Second, in relation to clause B.5.3 generally, the respondents disputed the applicant’s characterisation of the clause as merely a “further guidance clause”. The respondents submitted that the applicant’s submission about the words “may also be” in the chapeau of clause B.5.3 should not be accepted. The respondents submitted that the words “may also be” signified that employees working in the industries covered by the Award, but not contemplated by the sub-clauses to clause B.5.3, could fall within the classification level without satisfying the detailed criteria in that clause. The respondents submitted that the Award used the word “may” rather than “must”, as suggested by the applicant, because otherwise clause B.5.3 would have the effect of excluding from the classification level those persons in a wide array of roles in the fitness industry, as defined, ranging from persons working at gyms to indoor sports centres, golf driving centres, dance centres, martial arts centres and recreation camps. The respondents submitted that for employees working in roles contemplated by the sub-clauses to clause B.5.3, namely swimming teachers (sub-clause (a)), swimming coaches (sub-clause (b)), and pool lifeguards (sub-clause (c)), satisfaction of the clause was mandatory to fit into the classification level. The respondents submitted that the Award would not have included a specific, detailed classification system for employees in those roles in particular if that system was only indicative and could effectively be ignored. Further, the respondents submitted that if the construction advanced on behalf of the applicant was adopted, then it would be very difficult to work out the proper classification level for swimming teachers, swimming coaches, and pool lifeguards, as the general supervision, initiative, and judgment conditions would be left to do all the work. In relation to sub-clause B.5.3(b) in particular, the respondents submitted that the clear and deliberate drafting of the sub-clause indicated that it operated as both a “floor” and a “ceiling” to limit the scope of swimming coaches captured by the classification level. The respondents emphasised that the sub-clause was limited to “a coach of beginner swimmers…, being a holder of a current ASCTA Bronze Licence”. The respondents submitted that the provision was not framed to capture coaches of at least beginner swimmers with at least a Bronze Licence, and that the specific references in those conditions to coaches “of” beginner swimmers, with a “current” Bronze Licence, were mandatory in nature. In relation to the requirement to hold a current Bronze Licence, the respondents also relied upon clause B.10 of Schedule B to the Award, which required employees to “hold, at all times, the relevant accreditations required by … this award’s classification descriptors”, and to advise their employers within 14 days of losing, having suspended, or being refused a required accreditation. In response to the applicant’s submission that this construction was perverse and that it was inconceivable that the classification structure was intended to operate with that effect, the respondents submitted that the construction was supported by the text and history of the Award, and that the Award was only part of a wider safety net under the Fair Work Act that included the National Employment Standards and the National Minimum Wage. The respondents further submitted that the concept of excluding employees from award coverage because of the nature and seniority of their role is as old as awards themselves. On the facts, the respondents submitted that during the claim period, the applicant did not coach beginner swimmers, and the applicant did not hold a current Bronze Licence, and therefore that his employment did not fall within the classification level. I shall address later the evidence in relation to these issues in considering whether the Award covered the applicant’s employment during the claim period.

The respondents’ classification level 4A submissions

60    Taking the elements of classification level 4A in turn, the respondents submitted as follows.

61    First, in relation to the chapeau of clause B.6.1, the respondents submitted that classification level 4A was a sub-step from, and was built upon, classification level 4. The respondents submitted that it was a pre-requisite to coverage in classification level 4A that an employee “performs” – and falls within – classification level 4. On that basis, the respondents’ primary submission was that since the applicant’s employment did not fall within classification level 4, for the reasons summarised above, it also did not fall within classification level 4A.

62    Second, in relation to sub-clause B.6.1(a), the respondents submitted that the applicant’s Silver Licence was not “equivalent” to a Fitness Industry Certificate Level IV qualification. The respondents emphasised the evidence that the swim coaching qualifications had never been approved and accredited by ASQA, or recognised in the AQF, and submitted that there was no basis for the applicant to assert that his Silver Licence was “equivalent” to a Fitness Industry certificate Level IV qualification. Further, the respondents submitted that it was very unlikely that classification level 4A was intended to capture swimming coaches, given that sub-clause B.6.1(a) was specifically directed towards Fitness Industry AQF qualifications, and not swim coaching qualifications, which were specifically considered elsewhere in the classification structure. The respondents’ submission in relation to sub-clause B.6.1(a) necessarily extended to a submission in relation to sub-clause B.6.1(b) that the applicant did not utilise the skills and knowledge derived from a Fitness Industry AQF Certificate Level IV, which he did not hold, in his work.

The respondents’ classification level 5 submissions

63    Taking the elements of classification level 5 in turn, the respondents submitted as follows.

64    First, in relation to clause B.7.1, the respondents submitted that the applicant did not satisfy the necessary conditions in the sub-clauses, as follows:

(1)    the applicant’s Silver Licence was not equivalent to a Fitness Industry AQF at Diploma level, for the same reasons given in relation to sub-clause B.6.1(a) in classification level 4A, set out at [62] above, that the applicant’s Silver Licence was not equivalent to a Fitness Industry Certificate Level IV qualification;

(2)    consequently, the applicant did not utilise the skills and knowledge derived from a Fitness Industry AQF at Diploma level, which he did not hold, in his work;

(3)    the applicant was not employed to carry out work associated with the classification of “Fitness Trainer” or “Fitness Specialist”. The respondents submitted that the applicant had not established that he satisfied this condition, and that his submissions went no further than asking the Court to ignore the terms “Fitness Trainer” or “Fitness Specialist”, and the condition as a whole. The respondents submitted that those terms and the condition had to be given some meaning. The respondents further submitted that the Award did not by those terms intend to capture swimming coaches because otherwise the Award would have adopted specific terminology applicable to swimming coaches, as was used elsewhere in the classification structure, and that the history of the Award suggested that those terms were directed at personal trainers and not swimming coaches.

65    Second, in relation to clause B.7.2, the respondents did not contest the applicant’s submission that he satisfied the initiative, judgment, and supervision requirements in that clause.

The respondents’ submissions concerning the applicant’s final season of 2017-2018

66    Finally, the respondents also disputed the applicant’s alternative claim that he was at least covered by classification level 4 during his final season at MVC when he coached the MVC Junior Squad.

67    The respondents submitted by reference to evidence, which I shall address later, that the swimmers in the MVC Junior Squad were above the level of “beginner swimmers”. Alternatively, the respondents submitted that even if the swimmers in the MVC Junior Squad were beginner swimmers, the applicant’s employment nonetheless did not fit within classification level 4 during his final season with MVC. First, the applicant did not satisfy the other condition in sub-clause B.5.3(b), as he did not hold a “current Bronze Licence”. Second, even assuming that the applicant satisfied sub-clause B.5.3(b) in respect of his coaching of the MVC Junior Squad, the applicant’s employment was not covered by classification level 4 because the major and substantial role of his employment did not fit within the classification level. In support of that submission, the respondents relied upon authority to the effect that the question whether an industrial instrument covers an employee with mixed duties should be determined by reference to the employee’s major and substantial role, and submitted that the applicant’s major and substantial role did not include coaching beginner swimmers. The respondents submitted that the fact that the applicant coached the MVC Junior Squad in his final season was an aberration, as he otherwise always coached higher level squads, including during his final season when he also coached the National Age Squad. Further and alternatively, the respondents submitted that if the Court found that the applicant did fall within classification level 4 because he coached the MVC Junior Squad in his final season, that finding of coverage should be limited to the hours that the applicant worked when he coached the MVC Junior Squad that were authorised by MVC, and not those hours when he was coaching the National Age Squad.

The history of the Fitness Industry Award

68    The parties made detailed submissions directed to the history of the Fitness Industry Award. That history included the pre-modern award coverage in Queensland, New South Wales, and Victoria, the award modernisation process that led to the making of the Award, and the variations to the Award up to the version that is relevant to this proceeding. I shall give an account of the history of the Award, and the parties’ submissions in relation to that history, chronologically.

Pre-modern awards applicable in Queensland, New South Wales and Victoria

69    The parties made submissions in relation to the coverage of pre-modern awards that had effect in Queensland, New South Wales, and Victoria, before the Award commenced operation on 1 January 2010. The parties’ submissions in relation to pre-modern award coverage in those states formed part of their later submissions in relation to how the award modernisation process should inform the construction of the Award.

Queensland

70    In respect of Queensland, the parties made submissions in relation to two state awards: the Health and Fitness Centres and Indoor Sports Award – South East Queensland – 2003 (SE Queensland Award 2003); and the Health and Fitness Centres, Swim Schools and Indoor Sports Award – State 2005 (Queensland Award 2005).

71    The SE Queensland Award 2003 commenced operation on 2 June 2003. The coverage provision in clause 1.3.1 provided that it applied to “all employees (who are classified herein) of Health and Fitness Centres, Indoor Sports Centres or similar facilities, and to their employers, in the South-Eastern Division of Queensland.” It did not cover swim schools, swim clubs, swim teachers, or swim coaches.

72    On 17 December 2004, the Liquor, Hospitality and Miscellaneous Union (LHMU) applied to the Queensland Industrial Relations Commission seeking that the Commission rescind the SE Queensland Award 2003 and make a new State award, which became the Queensland Award 2005. The LHMU application stated that its purpose was “to create uniform conditions for the Health and Fitness industry across the state as well as include conditions for Swim Schools that are currently Award – free.” The LHMU application attached a proposed award, which was stated to reflect lengthy negotiations held between the LHMU and employers intended to be covered by the proposed award. The coverage provision in clause 1.3.1 of the proposed award relevantly provided that it would “apply to all employees (who are classified herein) of health and fitness centres, swim schools and aqua facilities…., indoor sports centres or similar facilities, and to their employers, throughout Queensland”. The proposed award did not include a definition of swim school. Clause 1.6.2 of the proposed award included a definition of “Aqua Facility”, which was relevantly “any body of water used for the purpose of instruction of aqua aerobics, fitness training and learn to swim.” The classifications of the proposed award were divided across four schedules: Schedule A for “fitness industry workers”, which included reference to the term “Fitness Trainer” that appears in the relevant version of the Fitness Industry Award; Schedule B for “swim school workers”; Schedule C for “indoor sports centre workers”; and Schedule D for “support staff, swim schools and indoor sports venues”. The classification levels for swim school workers in Schedule B were as follows –

SWIM SCHOOL WORKERS:

Level 1:

An employee at this level works under general supervision and uses some judgement in predictable circumstances.

Typical Duties/Skills

The tasks set out below are an indicative guide only and should not be regarded as an exhaustive list. Indicative tasks for work performed at this level are as follows:

(a)    Beginner Instructor;

(b)    Holder of a current Austswim registration or equivalent.

Has successfully completed the Centre’s relevant Induction Course

Or

Holds an Australian Swimming Inc. Green Licence for Coaching and has successfully completed the Centre’s relevant Induction Course.

Level 2:

An employee at this level works under general supervision and exercises limited discretion within defined procedures.

Typical Duties/Skills/Experience:

The tasks set out below are an indicative guide only and should not be regarded as an exhaustive list. Indicative tasks for work performed at this level are as follows:

(a)    Intermediate Instructor holding current Austswim registration or equivalent and who has successfully completed the Centre’s relevant induction training plus has:

(b)    performed 12 hours per year of recognised ‘workshop’ and 250 hours of instructing Learn-to-Swim and a second recognised instructing qualification

Or

(a)    have delivered 350 hours of instructing Learn-to Swim.

(b)    Holds an Australian Swimming Inc. Bronze Coaching Licence and has successfully completed the Centre’s relevant induction course.

Level 3:

An employee at this level works under limited supervision and performs work of a higher level complexity than an employee at Level 2.

Typical Duties/Skills/Experience

An employee at this level shall be an experienced instructor:

(a)    Holding a current Austswim registration or equivalent and have successfully completed the Centre’s relevant induction training;

(b)    performed 12 hours per year of recognised ‘workshops’ and 500 hours of instructing Learn-to-Swim and a third recognised swim instructing qualification; or

(c)    delivered 700 hours of instructing Learn-to-Swim; and

(d)    Holds an Australian Swimming Inc. Bronze Coaching Licence, having successfully completed the Centre’s relevant induction training, and has performed 12 hours per year of recognised workshops and 500 hours of coaching junior squads and attendance at a recognised seminar/conference within the past 12 months, or conducted 700 hours of coaching of junior squads.

Level 4:

An employee at this level works from complex instructions and procedures and is able to coordinate work in a team environment or work individually under general supervision.

Skills/Experience:

They shall have aggregate skills and experience and qualifications required of Level 2 and Level 3 operatives.

73    At the hearing of the application before the Queensland Industrial Relations Commission on 7 February 2005, a representative of the LHMU stated that the purpose of the application was to extend the geographical coverage of the SE Queensland Award 2003 across the whole of the State, and also relevantly to extend coverage to “swim schools”, which were generally “award-free”. A representative of three employer bodies, namely Fitness Queensland, Swim Australia, and Indoor Cricket Queensland Incorporated, stated that those bodies made up a significant proportion of the employers that would be covered by the proposed award, and that they supported the LHMU’s application. At the conclusion of the hearing, the Commission rescinded the SE Queensland Award 2003 and made the Queensland Award 2005, to take effect from 1 March 2005 with minor amendments to the LHMU proposed award that are not presently relevant.

74    In the present proceeding, the parties advanced their own constructions of the Queensland Award 2005, and relied upon their respective constructions to make submissions about how the Queensland Award 2005 forms part of the context and history of the Fitness Industry Award, and should inform the proper interpretation of that Award.

75    The applicant submitted that it was apparent that elements of the classification structure in the Queensland Award 2005 were picked up in the Fitness Industry Award. The applicant submitted that the transcript of the hearing before the Queensland Industrial Commission on 7 February 2005 conveyed that there was some chaotic disorder in the process that produced the Queensland Award 2005, and submitted that there should be some scepticism about the level of careful analysis or drafting that went into that process. The applicant submitted that it was arguable that swimming coaches were covered by the Queensland Award 2005, and this formed part of the applicant’s submission in relation to how the award modernisation process should inform the construction of the Fitness Industry Award.

76    The respondents submitted that the Queensland Award 2005 was directed to swim schools, and that it did not cover swim clubs. In making that submission, the respondents submitted that the Queensland Award 2005 did not refer to swim clubs or to swimming coaches, and instead it only referred to swimming instructors, who gained experience by “instructing Learn-to-Swim”. The respondents further submitted that while the Queensland Award 2005 did refer to the Bronze Licence swim coaching qualification, there was no reference to Silver or Gold Licences, even though they existed at the time, and it could therefore be inferred that persons holding those higher level licences were deliberately excluded from coverage. The respondents submitted that the intention of including swimming instructors in this award was to cover swimming teachers in swim schools, and also persons in swim schools who may be swimming teachers or low-level swimming coaches who held a Bronze Licence and who were instructing “junior squads” of beginner swimmers who had recently graduated from a learn-to-swim course. The respondents submitted that this structure was reflected in the classification levels of the relevant version of the Fitness Industry Award, and that the Fitness Industry Award was likewise intended to cover swimming teachers in swim schools, and Bronze Licence swim coaches who were coaching beginner swimmers. In particular, the respondents pointed to sub-clause (d) in classification level 3 of the Queensland Award 2005, and emphasised the elements in that sub-clause, being the coverage of a Bronze Licence coach of “junior squads”, which were relevantly picked up in the Fitness Industry Award.

New South Wales

77    In respect of New South Wales, the parties made submissions in relation to the Health, Fitness and Indoor Sports Centres (State) Award (NSW Award). The NSW Award was made by the Industrial Relations Commission of New South Wales, and the parties referred to the version of that award as at 27 March 2006. The classification structure was contained in clause 3 of the NSW Award. That classification structure spanned six levels, none of which contained any clear reference to swim schools, swim clubs, swimming teachers, or swimming coaches.

78    In the present proceeding, as with the Queensland Award 2005, the parties advanced their own constructions of the NSW Award, and relied upon their respective constructions to make submissions about how the NSW Award formed part of the context and history of the Fitness Industry Award, and should inform the proper interpretation of that Award.

79    The applicant submitted that the NSW Award covered swimming coaches in New South Wales until the Fitness Industry Award came into operation, and this formed part of the applicant’s submission in relation to how the award modernisation process should inform the construction of the Fitness Industry Award.

80    The respondents submitted that it was questionable whether the NSW Award covered swimming coaches, and that any intention to do so was not self-evident. The respondents pointed to the scarce references in the classification structure that could arguably be said to capture the work of a swimming coach, noting a reference to a “pool attendant” and a later reference to an “instructor” who provides supervision of a group or individual fitness activity or program. The respondents noted that the term “instructor” was not defined, and submitted that there was no evidence in the industry that a swimming coach was an “instructor”.

Victoria

81    Finally, in respect of Victoria, the parties made submissions in relation to the Fitness Industry (Victoria) Interim Award 2000 (Victorian Award), and the Fitness Industry Victorian Common Rule Declaration 2005 (Victorian Common Rule Declaration).

82    The Victorian Award was made by the Australian Industrial Relations Commission, pursuant to a referral of power from Victoria to the Commonwealth, and commenced operation on 18 October 2001. The coverage provision in clause 4 of the Victorian Award stated that it “governs the wages and conditions of employment of all persons other than administrative and management positions engaged in the performance of work in or in connection with the fitness industry.” The Victorian Award did not contain a definition of “fitness industry”, and the classification structure in clause 15 was limited to four titles without descriptions, being from the lowest level to the highest level: “attendant”; “masseur”; “instructor (other); and “instructor (qualified)”. Schedule A set out a list of employer respondents to the Victorian Award, which included a number of YMCAs, aerobics and leisure centres, and gyms. The respondents named in the schedule to the award did not include MVC, or any other organisation readily identifiable as a swimming club.

83    The Victorian Common Rule Declaration was made also by the Australian Industrial Relations Commission as a common rule award, and commenced operation on 1 January 2005. It made the operative terms of the Victorian Award, with limited exceptions, binding on all employers in respect of the employment by them of employees in the fitness industry, except for employees in administrative and management positions.

84    In the present proceeding, as with the Queensland Award 2005 and the NSW Award, the parties advanced their own constructions of the Victorian instruments, and relied upon their respective constructions to make submissions about how the Victorian instruments form part of the context and history of the Fitness Industry Award, and should inform the proper interpretation of that award.

85    The applicant submitted that the Victorian Award and Victorian Common Rule Declaration had broad coverage across the fitness industry in Victoria, including coverage of swimming coaches, prior to the Fitness Industry Award coming into operation. More specifically, the applicant submitted that the Victorian instruments covered his employment by MVC from the commencement of that employment in 2006 until the Fitness Industry Award came into operation on 1 January 2010. As with the pre-modern award coverage in Queensland and New South Wales, this formed part of the applicant’s submission in relation to how the award modernisation process should inform the construction of the Fitness Industry Award, which I shall address below.

86    The respondents submitted that it was questionable whether the Victorian Award and Victorian Common Rule Declaration covered swimming coaches, and that any intention to do so was not self-evident. The respondents pointed to the bare titles that constituted the four level classification structure, and submitted that there was little on the face of those titles that could be equated to the work of a swimming coach.

Award modernisation process and the making of the Award

Award modernisation process generally

87    I have referred already to the award modernisation process under Part 10A of the Workplace Relations Act. On 2 April 2008, the Commonwealth Minister for Employment and Workplace Relations made a request pursuant to s 576C(1) of that Act that the Australian Industrial Relations Commission undertake award modernisation in accordance with the request. The award modernisation request stated the objects of award modernisation as follows –

1.    The aim of the award modernisation process is to create a comprehensive set of modern awards. As set out in section 576A of the Act, modern awards:

a.    must be simple to understand and easy to apply, and must reduce the regulatory burden on business; and

b.    together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees; and

c.    must be economically sustainable and promote flexible modern work practices and the efficient and productive performance of work; and

d.    must be in a form that is appropriate for a fair and productive workplace relations system that promotes collective enterprise bargaining but does not provide for statutory individual employment agreements; and

e.    must result in a certain, stable and sustainable modern award system for Australia.

2.    The creation of modern awards is not intended to:

a.    extend award coverage to those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have traditionally been award free. This does not preclude extension of modern award coverage to new industries or new occupations where the work performed by employees in those industries or occupations is of a similar nature to work that has historically been regulated by awards (including State awards) in Australia;

b.    result in high-income employees being covered by modern awards;

c.    disadvantage employees;

d.    increase cost for employers;

e.    result in the modification of enterprise awards. This does not preclude the creation of a modern award for an industry or occupation in which enterprise awards operate. However section 576V of the Act provides that a modern award is to be expressed not to bind an employer who is bound by an enterprise award in respect of an employee to whom the enterprise award applies.

88    The award modernisation request also prescribed how the Commission was to undertake the award modernisation process, including by prescribing consultation with stakeholders and interested parties, the publication of exposure draft modern awards, and the completion of the award modernisation process by 31 December 2009. Pursuant to the request, the Commission engaged in consultation and made 122 modern awards, including the Fitness Industry Award, which commenced operation on 1 January 2010. In the present proceeding, the parties made submissions about how the award modernisation process generally, and the award modernisation request in particular, should inform the interpretation of the Award.

89    The applicant relied upon paragraph [2(a)] of the award modernisation request. The applicant focussed on the second half of that paragraph, which stated that the award modernisation process may extend modern award coverage to new industries or new occupations where the work of employees was of a similar nature to work that had historically been regulated by awards. In this context, the applicant relied on his submissions that prior to the Fitness Industry Award coming into operation, his employment by MVC was covered by the Victorian instruments, and if he were in New South Wales then it would have been covered by the NSW Award, and if he were in Queensland then it was arguable that it would have been covered by the Queensland Award. The applicant submitted that even if he was wrong about that position in some or all of Victoria, New South Wales or Queensland, the extension of award coverage in the Fitness Industry Award would nonetheless fall within the extension to work of a “similar nature”, as contemplated in the award modernisation request. The applicant also relied upon paragraph [2(c)] of the award modernisation request, which stated that award modernisation was not intended to disadvantage employees. The applicant again relied on his submission that he was covered by the pre-modern award Victorian instruments, and submitted that it would be contrary to this paragraph of the award modernisation request if he were to have lost award coverage because the Fitness Industry Award came into operation on 1 January 2010.

90    The respondents also relied upon paragraph [2(a)] of the award modernisation request. The respondents focussed on the first part of that paragraph, which stated that the award modernisation process was not intended to extend award coverage to those classes of employees who because of the nature or seniority of their role have traditionally been award free. The respondents relied upon that passage of the request to support two submissions. First, the respondents submitted that it supported their submission that it was not perverse, or unusual, for an award to exclude employees because of the nature or seniority of their role. More specifically, that it was not perverse, or unusual, for the Fitness Industry Award to exclude swimming coaches such as the applicant because they coached swimmers above the level of “beginner swimmers”, and held a licence above the level of a Bronze Licence. Second, the respondents submitted that the statement that award modernisation was not intended to extend award coverage to that class of employees was consistent with the respondents’ submissions about the pre-modern award coverage and the coverage of the Fitness Industry Award. As stated above, the respondents submitted that the Queensland Award 2005 did not cover swimming coaches above the level of coaches of “junior squads” who held a Bronze Licence, and that it was questionable whether the NSW Award or the Victorian instruments covered swimming coaches at all. The respondents submitted that their construction of the Fitness Industry Award essentially picked up the coverage of swimming coaches from the Queensland Award 2005, such that it did not cover swimming coaches above the level of coaches of “beginner swimmers” who held a Bronze Licence.

LHMU submission to the Commission dated 28 July 2009

91    On 28 July 2009, the LHMU made a submission to the Commission in support of the making of a modern award to cover employers of employees engaged in the fitness industry. In its submission, the LHMU noted its understanding that the Commission was proposing to make a modern award, and that it would subsume seven listed pre-modern awards, including the Queensland Award 2005, the NSW Award, and the Victorian Award. The LHMU also stated that it was finalising the terms of a proposed modern award, which it would submit to the Commission as soon as practicable. With respect to the coverage of its proposed modern award, the LHMU submission stated –

Coverage

4.    The LHMU suggests the following “coverage” for the proposed award:

This industry award covers employers throughout Australia in the fitness industry1.

[Footnote 1 stated “From Fitness Industry (Vic) Interim Award 2000”, namely the Victorian Award]

5.    The LHMU defines the fitness industry in the following terms:

Leisure, aerobics and fitness centres, group fitness organisations, personal trainers, weight loss/control centres, aquatic centres, squash courts, indoor sports centres (including indoor cricket, soccer, archery and squash), golf driving ranges, dance and martial arts centres, swim schools and youth organisations, and employers who provide the management and/or operation of facilities involving work of a fitness and/or recreation and/or leisure and/or aquatic nature for local government entities, and to their employees in the classifications listed in(the Award) [sic] to the exclusion of any other modern award

[Underlined emphasis added.]

92    That proposed coverage provision relevantly included reference to “aquatic centres” and “swim schools” within the proposed definition of “fitness industry”, as emphasised above.

93    With respect to the wages and classifications of its proposed modern award, the LHMU submission stated –

Wages and classifications

10.    The LHMU classification structure has drawn on the provisions of the Queensland NAPSA [the Queensland Award 2005]. The wage rates are based on those applicable to the pre-reform award operating in Victoria [the Victorian Award].

94    In the present proceeding, the parties made brief references to this LHMU submission as being the first submission made to the Commission in the award modernisation process that produced the Fitness Industry Award.

Fitness Australia proposed modern award submitted to the Commission on 4 August 2009

95    On 4 August 2009, Fitness Australia submitted a proposed modern award to the Commission. The Fitness Australia proposed modern award included a coverage provision that was framed by reference to a broad definition of “fitness industry” in similar terms to that proposed in the LHMU submission dated 28 July 2009, and which also relevantly included “aquatic centres” and “swim schools”, relevantly as follows –

Definition of fitness industry:

Leisure, aerobics and fitness centres (inc. playroom facilities), group fitness organisations, personal trainers, weight loss/control centres, aquatic centres, racquet sports, indoor sports centres (including indoor cricket, soccer, archery and squash), golf driving ranges, dance and martial arts centres, swim schools and youth organisations and employers who provide the management and/or operation of facilities involving work of a fitness and/or recreation and/or leisure and/or aquatic nature for local government entities, and (subject to 4.3) their employees in the classifications listed in Schedule A – Classification Structure to the exclusion of any other modern award…

[Underlined emphasis added.]

96    The classification structure was contained in Schedule A to the proposed modern award. It spanned six levels, being from the lowest level to the highest level: Fitness Worker; Fitness Instructor; Fitness Trainer; Fitness Trainer/Fitness Specialist; Fitness Supervisor/Operations Supervisor; and Fitness Centre Supervisor. None of the descriptions for those classification levels contained any express reference to swim schools, swim clubs, swimming teachers, or swimming coaches.

97    In the present proceeding, the parties made submissions about how the Fitness Australia proposed modern award formed part of the context and history of the Fitness Industry Award, and should inform the proper interpretation of that Award.

98    The applicant submitted that the classification structure in the Fitness Australia proposed modern award was framed broadly, without any particular reference to specific types of employees in particular types of centres in the fitness industry. The applicant also submitted that classification level 4 in the Fitness Australia proposed modern award was effectively adopted as classification level 5 in the Fitness Industry Award. The applicant submitted that this supported his broad construction of that classification level as extending to cover swimming coaches, including by covering his own employment with MVC.

99    The respondents emphasised that the Fitness Australia proposed modern award did not make any mention of the swim school or swim coaching industry, and submitted that it was targeted at the fitness industry outside of swimming. The respondents further submitted that the adoption into the Fitness Industry Award of some of terminology from the Fitness Australia proposed modern award, relevantly including the terms “Fitness Trainer” and “Fitness Specialist” that appear in classification level 5 of the relevant version of the Fitness Industry Award, supported their submission that those terms were not directed towards employees in the swimming industry, and that the applicant did not satisfy the condition of being employed to carry out work associated with the classifications of “Fitness Trainer” or “Fitness Specialist” as required to fall within that classification level.

ASCTA and Swimming Australia joint submission to the Commission dated 25 August 2009

100    On 25 August 2009, ASCTA and Swimming Australia made a joint submission to the Commission in support of a stand-alone modern award separate to a general fitness industry award, and attached a proposed modern award to that submission. The ASCTA and Swimming Australia submission advocated for a stand-alone modern award, as follows –

1.2    Swim Australia and the ASCTA are strongly of the view that it is in the interests of both the Sector and the general public that a stand-alone Modern Award be made to cover the Swim School Industry.

1.3    Swim Schools are principally educational institutions with the core purpose of providing swimming and water safety lessons. Additionally, Swim Schools commonly cater for ‘graduates’-swimmers – seeking to further develop their strokes and or become safer in and about water. This can extend into coaching of juniors.

1.3.1    Therefore, the Industry has a different set of requirements to those of the general ‘Fitness Industry’, particularly in relation to the type of employment on offer, skills and knowledge used, spread of hours and flexibility of operation in regard to the rostering of staff.

1.3.2    Generally speaking, the Industry has a high reliance upon the use of casual, (including sessional staff), or fixed-term (seasonal) employees, comprising over seventy five percent (75%) of the regularly engaged workforce.

1.4    The Industry is genuinely national, albeit, concentrated in New South Wales and Queensland, with over sixty eight percent (68%) of employees being engaged under the terms and conditions based upon either of the two NAPSAs applying in those states. Concurrently, only approximately sixteen percent (16%) fall within the coverage of the current federal system award applying in Victoria.

1.4.1    The Health, Fitness and Indoor Sports Centres (N.S.W) AN 120240, and Health and Fitness Centres, Swim Schools and Indoor Sports Award – State (Qld) AN40142, have, in the case of the N.S.W award, undergone the equivalent ‘Award Simplification’ process within that state’s jurisdiction, or as in the case of the QLD award is a relatively recent award, the product of wide-ranging industry consultation in that state; and with significant input nationally from Swim Australia and ASCTA.

1.4.2    Swim Australia and ASCTA contend that it is appropriate that a Modern Award should:

a.    Reflect the current custom and practice, as well as anticipating the needs of the Industry within the next four years;

b.    Contain the appropriate references to the NES and other statutory requirements;

c.    Provide an equitable outcome to all parties, therefore should be built more around existing provisions of the two main NAPSAs than arbitrarily based upon conditions relating to one federal system (sic Victorian) award.

101    The modern award proposed by ASCTA and Swimming Australia contained the following coverage clauses –

4.    Coverage

4.1    This industry award covers 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.

4.2    Definition of Swim School Industry*

Employers who provide the management and/or operation of Swim Schools and aqua facilities, whether the facilities are leased from municipal baths or not, where:

4.2.1    Swim schools are principally educational institutions with the core purpose of providing swimming and water safety lessons. Additionally, Swim Schools commonly cater for ‘graduates’-swimmers – seeking to further develop their strokes and/or become safer in and around water. This can extend into coaching of juniors.

4.2.2    As Swim Schools have essential ‘aqua facilities’, that is, any body of water suitable for instruction irrespective of location; the Swim School can also commonly provide related activities in the health and fitness area, such as aqua aerobics.

The award does not cover employers in the following industries or activities:

4.3    Exclusions

(a)    Employees of employers covered by the Amusement, Events and Recreation Award 2010;

(b)    Employees of contract cleaning companies covered by the Cleaning Industry Award 2010;

(c)    Employees of employers covered by the Children’s Services Industry Award 2010;

(d)    Employees of contract security companies covered by the Security Services Industry Award 2010;

(e)    Employees of employers covered by the Local Government Award 2010;

(f)    Employees of employers covered by the Hospitality Industry (General) Award 2010 who operate health and fitness centres for the benefit of guests only;

(g)    Employees of employers covered by the Registered and Licensed Clubs Industry Award 2010;

(h)    Employees covered by the Fitness Industry Award 2010;

(i)    Persons employed in or in connection with the professional development, training or coaching of elite athletes.

4.4    The award does not cover an employee excluded from award coverage by the Act.

4.5    The award does not cover an employer bound by an enterprise award with respect to any employee who is covered by the enterprise award.

4.6    Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

102    The joint submission to the Commission also provided further commentary in relation to the coverage of the proposed modern award, as follows –

2.1    Coverage:

Clause 4.2.1 clearly differentiates the function and nature of the activities conducted in Swim Schools from those of the Health and Fitness Industry, and identifies the style of facilities used by reference to the definition found in the QLD NAPSA.

2.2    EXCLUSIONS:

Clause 4.3 replicates the exclusions contained in the LHMU draft award, referred to previously, however includes a reference to the ‘Fitness Industry Award 2010’ at (h); and further, to clarify the intended coverage, in (i) excludes “Persons employed in or in connection with the professional development, training or coaching of elite athletes.”

103    The classification structure of the proposed modern award was contained in Schedule A –

Schedule A

Classification Structure and Definitions *

* Developed from Qld NAPSA (AN: 140142)

Level 1

An employee at this level works under general supervision and uses some judgement in predictable circumstances.

Typical Duties/Skills:

The tasks set out below are an indicative guide only and should not be regarded as an exhaustive list. Indicative tasks for work performed at this level are as follows:

(a)    Beginner swimming and water safety Teacher, being a holder of current qualification as recognised by Swim Australia – “Swim Australia Teacher” or equivalent:

(b)    Coaching beginners (includes mini and junior squads), being a holder of a current ASCTA “Junior Squad and Assistant Coach” qualification or equivalent:

(c)    Support Staff role, with indicative tasks being:

Basic cleaning;

Gardening and labouring;

Handyman duties; and

General counter duties.

Level 2

An employee at this level works under general supervision and exercises limited discretion within defined procedures.

Typical Duties/Skills/Experience:

The tasks set out below are an indicative guide only and should not be regarded as an exhaustive list. Indicative tasks for work performed at this level are as follows:

(a)    Intermediate swimming and water safety Teacher, being a holder of current qualification recognised by Swim Australia – “Swim Australia Teacher” or equivalent and has:

(i)    performed 12 hours per year of recognised “workshops” and 250 hours of swimming and water safety teaching and holds a second recognised instructing qualification;

Or

(ii)    has delivered 350 hours of swimming and water safety teaching.

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

(c)    Support Staff at this level perform the following tasks, as well as those for a Support Staff Level 1:

Counter duties, including reception, operation of cash registers, use of electronic swipe devices, taking bookings, membership sales and membership enquiries;

Customer Liaison;

Basic bookkeeping; and

Assisting with the training of Support Staff Level 1.

Level 3

An employee at this level works under limited supervision and performs work of a higher level of complexity than an employee at Level 2.

Typical Duties/Skills/Experience:

The tasks set out below are an indicative guide only and should not be regarded as an exhaustive list. Indicative tasks for work performed at this level are as follows:

(a)    Experienced swimming and water safety Teacher; being a holder of a current qualification as recognised by Swim Australia – “Swim Australia Teacher” or equivalent, and has:

(i)    performed 12 hours per year of recognised “workshops” and 500 hours of swimming and water safety teaching and holds a third recognised teaching qualification;

Or

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

(b)    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.

(c)    Support Staff at this level perform the following tasks, as well as those for a Support Staff Level 2, however with only limited supervision, whilst exercising some initiative in the performance of their duties. Indicative tasks for work performed by Support Staff Level 3 include the following:

Assists with training and supervision of Support Staff Levels 1 and 2;

Playroom attending;

Membership product or service sales and or marketing;

Activities organising;

Promotional activities;

Other duties as directed within the scope of their knowledge and experience at this level.

Level 4

An employee at this level works from complex instructions and procedures and is able to coordinate a mixed skill workforce in a team environment or work individually under general supervision.

Skills/Experience:

They shall have aggregate skills and experience and qualifications required of Level 2 and Level 3 operatives.

Level 4 – (Group Aqua Aerobics Instructor)

An employee engaged to choreograph and instruct water-based fitness classes in a water environment, such as an indoor pool, outdoor pool, salt water pool or enclosed open water.

Skills/Experience:

Aqua Aerobics Instructor, being a holder of a current Certificate III level of the Fitness Industry Training Package with a specialisation in Aqua.

104    The joint submission to the Commission also provided further commentary in relation to the classification structure of the proposed modern award, as follows –

2.4    CLASSIFICATIONS AND MINUM [sic] WAGES:

2.4.1    Clause 15, and Schedule ‘A’ relate to a four level classification structure, albeit with a separate description of the role of Group Aqua Aerobics Instructor, with entry level at Level 1 and Senior swimming and water safety teachers and coaches classified at Level 4.

2.4.2    The classification descriptors are derived from the QLD NAPSA, with updated references to qualifications and other matters reflecting current industry usage.

2.4.3    The classification descriptors refer to the roles of Swim Australia and ASCTA as the national accreditation bodies.

2.4.4    The classifications incorporate a mixture of both formal (industry accredited) qualifications and relevant industry experience, and it is submitted, are reflective of the current and medium term needs of the industry.

2.4.5    None of the other current awards applied in the industry (including NAPSAs) have the detail contained in the draft’s classification structure. Adoption of these draft provisions will assist with eliminating any confusion relating to potential overlapping with other Modern Awards.

105    In addition, the joint submission to the Commission also included the following passages, which the parties to this proceeding brought to the Court’s attention –

2.3.1    Swim Schools are primarily engaged in the ‘delivery’ of swimming and water safety lessons, or alternatively Aqua Aerobics sessions, and or squad training. Each of these activities requires staff members to be engaged with pupils or clients for between 45 and 90 minutes. It is therefore essential that award-based conditions facilitate, not impede the delivery of the relevant programs to clients/pupils.

2.3.2    Swim Schools are frequently rostering staff to meet the demands of their school-aged customers. To maintain consistency between swimming and water safety Teachers and their pupils, weekly employees are being engaged over blocks of up to thirteen (13) consecutive weeks, coinciding with the academic calendar and to facilitate a Christmas/New Year closedown in many centres. Clause 10.4 seeks to establish a framework to ensure that individual employees receive, proportionately, entitlements enjoyed by “permanent” weekly employees. Seasonal employment is not, generally speaking, a requirement of the broader Health and Fitness Sector.

…

2.6.4    The organisations are opposed to the imposition of shift or split shift premiums due to:

a.    The [sic] are not a typical provision applying in any of the major awards in the Industry;

b.    The [sic] would add a significant economic impost that ultimately would be passed onto the consumer;

c.    Add complexity to payroll administration in an Industry that, by and large, is resource poor, in relation to Clerical/Administrative and H.R/E.R, personnel and programs.

…

2.7.3    As weekends, particularly Saturdays, are peak times for the delivery of tuition to school-aged children, minimum engagements must not be extended on those days as this would impose an unsustainable burden on parents wishing to ‘waterproof’ their youngsters. Minimum engagements have little tangible impact on how and when support staff, say for instance employed in operating counter services, are engaged.

2.7.4    By and large Swim Schools don’t operate on most public holidays, and if personnel are engaged under this award on a public holiday it is more than likely that it will be squad related. There will be little impact in regard to public holiday rates.

106    The applicant submitted that the ASCTA and Swimming Australia joint submission and proposed modern award was instructive. The applicant submitted that it provided telling insight into the classification levels in the relevant version of the Fitness Industry Award, and in particular the views of the swimming industry as to what was captured by those clauses that appeared in classification levels 3 and 4 of the Fitness Industry Award. That was because the relevant clauses pertaining to swimming coaches in classification levels 2 and 3 of this ASCTA and Swimming Australia proposed modern award were adopted in levels 3 and 4 of the Fitness Industry Award. The applicant submitted that the proposed modern award was intended to cover both swimming teachers and swimming coaches. In support of that submission, the applicant pointed to the reference in clause 4.1 to coverage of the “Swim School and Swim Coaching Industry”. The applicant also submitted that the joint submission and proposed modern award used the term “swim school” in a broad sense that encompassed swim clubs and swimming coaches, and pointed to that part of the definition of “Swim School Industry” that stated that swim schools “extend into coaching of juniors”. The applicant also emphasised clause 4.3(i) of the proposed modern award, which was an exception to coverage for “persons employed in or in connection with the professional development, training or coaching of elite athletes.” The applicant submitted that proposed exception was, in effect, an acknowledgement that most swimming coaches would be covered, and that the exception was limited to excluding from coverage the few coaches of elite swimmers, in the sense of swimmers competing in international competitions such as the Olympic Games. Further, the applicant pointed to clause 2.4.1 of the joint submission, which referred to “senior swimming and water safety teachers and coaches classified at Level 4”, and submitted that this demonstrated that all swimming coaches except the coaches of elite swimmers were proposed to be covered. The applicant submitted that in his employment with MVC, he did not coach such elite swimmers, such that he would have been covered under this proposed award. The applicant submitted that the joint submission and proposed modern award demonstrated that the leading swimming industry employer institutions considered that the Fitness Australia proposed modern award submitted to the Commission on 4 August 2009 would cover swimming coaches, and instead sought to have the Commission make a separate award for the swimming industry that was to cover most swimming coaches, with a specific exception limited to coaches of elite swimmers. The applicant also submitted that ASCTA and Swimming Australia were motivated to ensure that any modern award that covered swimming coaches did not include a split shift penalty rate, as stated in clause 2.6.4 of the joint submission, but this did not occur. The Fitness Industry Award does include a split shift penalty rate, upon which the applicant relies for part of his underpayments claim against MVC in this proceeding.

107    The respondents made an overarching submission that because the Commission in effect rejected the ASCTA and Swimming Australia joint submission and proposed modern award, and instead decided not to make a specific award for swim schools, the joint submission and proposed award had little bearing on the construction of the Fitness Industry Award. Under the cover of that overarching submission, the respondents also made specific submissions about the joint submission and proposed award. The respondents submitted that the proposed award was only intended to cover swim schools, which employ swimming teachers and the lowest level of swimming coaches who coach beginner swimmers. The respondents emphasised clause 4.2.1 of the definition of the “Swim School Industry”, which stated that “swim schools are principally educational institutions with the core purpose of providing swimming and water safety lessons. Additionally, swim schools commonly cater for ‘graduates’-swimmers – [sic] seeking to further develop their strokes and/or become safer in water. This can extend into coaching of juniors.” The respondents submitted that this reflected the coverage of the Queensland Award 2005, and that this was supported by clause 1.4.2 of the joint submissions, which stated that “it’s appropriate a modern award should reflect the current custom and practice.” With respect the proposed exception to coverage in clause 4.3(i) for “persons employed in or in connection with the professional development, training or coaching of elite athletes”, the respondents submitted that, in context, that exception should be understood as targeted towards excluding swim clubs. The respondents submitted that while the exception was clumsily worded and the word “elite” was prone to confuse, the exception was not limited to excluding coaches of elite athletes in the sense of swimmers competing in international competitions such as the Olympic Games. Rather, the respondents submitted that it extended to excluding coaches of a broader range of swimmers beyond those beginner swimmers in entry-level squads offered by swim schools. The respondents submitted that was confirmed by the classification structure in the proposed award, which essentially picked up the classification structure from the Queensland Award 2005.

LHMU further submission to the Commission dated 7 September 2009

108    On 7 September 2009, the LHMU made a further submission to the Commission. That further submission stated that the LHMU had liaised extensively with Fitness Australia, attached a further draft modern award that identified remaining areas of disagreement between the LHMU and Fitness Australia, and made submissions in support of the LHMU’s position in those areas. In respect of the coverage of a proposed modern award, the attached draft modern award provided as follows –

(NOT AGREED)

PROPOSED BY LHMU

1.3    Coverage

1.4    This industry award covers employers throughout Australia in the fitness industry1. Fitness industry means all employees and employers who are engaged in or in connection with or in or about:

1.5    Definition of fitness industry:

Leisure, aerobics and fitness centres, group fitness organisations, personal trainers, weight loss/control centres, aquatic centres, squash courts, indoor sports centres (including indoor cricket, soccer, archery and squash), golf driving ranges, dance and martial arts centres, swim schools and youth organisations,2 and employers who provide the management and/or operation of facilities involving work of a fitness and/or recreation and/or leisure and/or aquatic nature for local government entities, and (subject to 4.3) their employees in the classifications listed in Schedule A – Classification Structure to the exclusion of any other modern award. The award does not cover employers in the following industries:

PRPOSED BY FITNESS AUSTRALIA

fitness industry means:

(a)    fitness centres providing recreational facilities and programs which promote health and fitness;

(b)    playroom facilities located in fitness centres and which are operated by the fitness centre;

(c)    group fitness organisations, personal trainers, weight loss/control centres;

(d)    aquatic centres of facilities of an aquatic nature (including swim schools, teaching/instruction in basic water safety, swim skills and techniques; the conducting of Aqua Aerobics classes, Rehabilitation programs, coaching squads up to competition level (excluding elites [sic] athletes), including the carrying out of maintenance and basic cleaning functions; counter services, including bookings and associated promotional activities).

(e)    racquet sports, indoor sports centres (including indoor cricket, soccer, archery and squash);

(f)    gold driving ranges;

(g)    dance and martial arts centres.

(AGREED)

4.3 Exclusions:

(a)    Employees of employers covered by the Amusement, Events and Recreation Award 2010;

(b)    employees of contract cleaning companies covered by the Cleaning Industry Award 2010;

(c)    employees of employers covered by the Children’s Services Industry Award 2010;

(d)    employees of contract security companies covered by the Security Services Industry Award 2010;

(e)    employees of employers covered by the Local Government Award 2010;

(f)    employees of employers covered by the Hospitality Industry (General) Award 2010 who operate health and fitness centres for the benefit of guests only3;

(g)    employees of employers covered by the Registered and Licensed Clubs Industry Award 2010.

4.4    The award does not cover an employee excluded from award coverage by the Act.

4.5    The award does not cover an employer bound by an enterprise award with respect to any employee who is covered by the enterprise award.

4.6    Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[All font styles relevantly as in original]

109    The coverage provision proposed by the LHMU in that passage was relevantly the same as the coverage provision included in the LHMU’s first submission to the Commission dated 28 July 2009, and retained the references to “aquatic centres” and “swim schools” in the proposed definition of “fitness industry”. The coverage provision proposed by Fitness Australia was in different terms from that included in the earlier Fitness Australia proposed modern award submitted to the Commission on 4 August 2009. The earlier Fitness Australia proposed modern award had proposed to adopt a coverage provision that was in very similar terms to the LHMU proposal, and relevantly included the references to “aquatic centres” and “swim schools” in the proposed definition of “fitness industry”. The new coverage provision proposed by Fitness Australia relevantly included clause (d) of the proposed definition of “fitness industry”, which retained the reference to “aquatic centres” and extended in italic font to include “coaching squads up to competition level (excluding elite athletes)”. The further submission also addressed the coverage of the proposed modern award, as follows –

Coverage

As per the LHMU’s submission dated 27 August 2009, the LHMU believes that it is a matter for the Commission to determine whether the swim instructors have their own award.

110    In respect of classifications, the attached draft modern award provided that the LHMU and Fitness Australia disagreed on their proposed descriptions for classification level 1, which is not presently relevant, and otherwise agreed to adopt classification levels 2 to 6 of the Fitness Australia proposed award: namely, Fitness Instructor; Fitness Trainer; Fitness Trainer/Fitness Specialist; Fitness Supervisor/Operations Supervisor; and Fitness Centre Supervisor.

111    The applicant made two submissions about this further LHMU submission. First, the applicant submitted that the LHMU did not take a position as to whether “swim instructors” should have their own award, and the applicant submitted that this supported an inference that the LHMU did not have swimming coach members. Second, the applicant emphasised the Fitness Australia proposal to extend the reference to “aquatic centres” in the definition of “fitness industry” to include “coaching squads up to competition level (excluding elite athletes) [italic in original]”. The applicant suggested that phrase appeared in italic font because whether it would be included in the Fitness Industry Award would depend on whether the Commission made a separate award for “swim instructors”. The applicant submitted, as he did in relation to the ASCTA and Swimming Australia joint submission and proposed modern award, that the inclusion of the proposed exception was, in effect, an acknowledgement that if a separate award was not made, then most swimming coaches would be covered, and that the exception was limited to excluding from coverage the few coaches of elite swimmers, in the sense of swimmers competing in international competitions such as the Olympic Games.

112    The respondents did not make any specific submissions about this further LHMU submission, or the attached draft modern award that set out the LHMU and Fitness Australia proposals, and simply noted that the LHMU did not take a position as to whether “swim instructors” should have their own award.

Commission statement issued on 25 September 2009

113    On 25 September 2009, the Commission published a statement in relation to the award modernisation process: Award Modernisation [2009] AIRCFB 865. That statement referred to exposure drafts of various modern awards, including the Fitness Industry Award. The exposure draft of the Award is not before the Court, as it was not tendered. In respect of the Fitness Industry Award, the statement relevantly stated –

[95]    We have decided to make an exposure draft called the Fitness Industry Award 2010. The draft award covers employers engaged in the operation or provision of fitness centres, aquatic services or classes, indoor sports centres, golf driving ranges, dance centres and martial arts centres and their employees in the classifications in the award. Given the coverage of the draft award, the Clerks-Private Sector Award 2010 (Clerks Modern Award) may need to be varied to provide that it does not cover employers and employees covered by the draft Fitness Industry Award 2010.

…

[97]    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.

114    The applicant emphasised that the Commission’s statement at [97] referred to the inclusion of “swimming teacher and coach classifications” in the classification structure, and that the Commission decided not to accept the ASCTA and Swimming Australia submission seeking a separate award. Rather, as demonstrated in the Fitness Industry Award as made, the applicant submitted that the Commission in effect drew on the three different proposals put to it by the LHMU, Fitness Australia, and ASCTA and Swimming Australia, in drafting a single Fitness Industry Award. The applicant emphasised that the Commission did not create a separate award, and it also did not include the proposed exception for coaches of elite athletes, both of which had been proposed by the swimming industry, which supported a broad interpretation of the coverage of the Award as made, extending to cover all swimming coaches.

115    The respondents did not make any specific submissions about the Commission’s statement, and simply noted that the Commission’s statement did not provide detailed reasons for refusing the ASCTA and Swimming Australia joint submission for a separate award.

The Award as made

116    On 4 December 2009, the Commission published an order under which the Award was made, which was to take effect on 1 January 2010. The Award as made contained coverage provisions, in clause 4 and also the definition of “fitness industry”, in the same terms as those that remained in the version of the Award that is the subject of this proceeding, set out at [39] and [40] above. The Award as made also contained a classification structure at Schedule B, which relevantly contained levels 4 and levels 5, noting that there was originally no level 4A, as follows –

B.4    Level 4

B.4.1    An employee at this level has relevant industry experience and/or a Fitness Industry Training Package Certificate Level IV (or other relevant qualifications applicable to the centre’s operations) and/or is employed to carry out work associated with the centre’s operations.

B.4.2    An employee at this level may also be:

(a)    an experienced swimming and water safety teacher, being a holder of a current qualification recognised by Swim Australia – “Swim Australia Teacher” or equivalent, 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.

B.4.3    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.

B.4.4    An employee at this level receives broad instructions and their work is checked intermittently.

B.5    Level 5

B.5.1    An employee at this level has relevant industry experience and/or a Fitness Industry Training Package Diploma level or equivalent and is employed to carry out work associated with the classification of Fitness Trainer or Fitness Specialist. Such an employee has demonstrated an ability to train or develop programs for special groups.

B.5.2    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.

117    In the present proceeding, the parties made submissions in relation to the Award as made, in light of the history summarised above, and how that should inform the proper interpretation of the classification structure of the version of the Award that is the subject of this proceeding.

118    The applicant emphasised his submissions summarised earlier in relation to the ASCTA and Swimming Australia joint submission and proposed modern award dated 25 August 2009, and the Commission’s statement issued on 25 September 2009. The applicant submitted first, that the Commission did not include in the Fitness Industry Award an exception for coaches of elite athletes that had been proposed, and submitted that therefore the Award was intended to cover all coaches. Second, the applicant submitted that the Commission picked up from the ASCTA and Swimming Australia proposed modern award some clauses that were specific to swimming coaches, and inserted them into classification levels 3 and 4 of the Fitness Industry Award, relevantly including clause B.4.2(b) extracted above. The applicant submitted that, therefore, the Award also picked up the ASCTA and Swimming Australia understanding of those clauses, relevantly including that they would cover all swimming coaches, given that the proposed exception for elite coaches was not included.

119    The respondents submitted that the original structure of classification level 4 in the Award as made supported the respondents’ submission in relation to the construction of the words “may also be” in the chapeau to clause B.5.3 within classification level 4 of the relevant version of the Award. That is to say, that the words “may also be” were mandatory for employees working in the roles that were contemplated by the sub-clauses to that clause, namely swimming teachers (sub-clause (a)), swimming coaches (sub-clause (b)) and pool lifeguards (sub-clause (c)), such that the applicant was required to establish that he coached beginner swimmers and held a current Bronze Licence for his employment by MVC to fall within classification level 4. The respondents pointed to the original structure of classification level 4, and submitted that clause B.4.1 was directed at capturing some employees working in the fitness industry, in the narrower sense of persons working in gyms and like facilities, whereas clause B.4.2 was directed at capturing employees working in the swimming industry, namely swimming teachers (sub-clause (a)), swimming coaches (sub-clause (b)) and pool lifeguards (sub-clause (c)). The respondents submitted that clause B.4.2 used the words “may also be” to signify that clauses B.4.1 and B.4.2 provided alternative avenues for those two different groups of employees to fall within classification level 4. That is, an employee in the fitness industry in the narrower sense would fall within the classification level by satisfying clause B.4.1, and an employee in the swimming industry “may also be”, as an alternative avenue, within the classification level by satisfying clause B.4.2, subject to any employee proposed to be covered satisfying the common supervision, initiative and judgment requirements in clauses B.4.3 and B.4.4. The respondents submitted that when the Award was later varied on 20 November 2012, by removing what was clause B.4.1 from classification level 4 and creating a separate classification level 4A for employees working in the fitness industry in the narrower sense, the words “may also be” in what was clause B.4.1 were retained, and also retained their meaning as creating mandatory conditions for persons working in the swimming industry to fall within the classification level.

Variations to the Award

120    There were four variations made to the classifications in Schedule B of the Award up to and including 4 December 2013. Those variations were made pursuant to the Fair Work Act by Fair Work Australia, now titled the Fair Work Commission, which is the title that I shall employ. The variations may be briefly summarised as follows. First, on 20 July 2010, the Commission amended the sub-clauses in classification levels 2, 3, and 4 that related to swimming teachers, and relevantly not swimming coaches, by including a more specific reference to the type of qualifications required to be held by swimming teachers. The Commission also inserted a new clause that required swimming teachers at classification levels 2, 3, and 4 to at all times hold the relevant accreditations required by their classification level and by legislation permitting them to work with children, and to advise their employer within 14 days of losing, having suspended or being refused any such accreditation. Second, on 29 September 2011, the Commission inserted sub-clauses in classification levels 3 and 4 that related specifically to pool lifeguards. Third, on 20 November 2012, the Commission made substantial amendments to classification levels 3 and 4, and inserted new classification levels 3A and 4A, along with other minor amendments. As summarised at [119] above, the respondents relied upon this variation to support their submission in relation to the words “may also be” in the chapeau to clause B.5.3 within classification level 4 of the relevant version of the Award. By this variation, the Commission removed the first clause from each of classification levels 3 and 4, which clauses had related to persons having relevant industry experience and/or a Fitness Industry Training Package Certificate Level III, or Level IV, respectively. The Commission otherwise did not amend the terms of classification levels 3 and 4, other than to re-arrange the clauses so that the clauses containing the supervision, initiative, and judgment conditions appeared first in the classification level. The Commission inserted new classification levels 3A and 4A, which picked up the references to employees who held a Fitness Industry AQF Certificate Level III, and Level IV, which had been removed from classification levels 3 and 4, respectively. Finally, the Commission also extended to swimming coaches in classification levels 3 and 4 the sub-clause requiring employees to at all times hold the relevant accreditations required by their classification level and by legislation permitting them to work with children, and to advise their employer within 14 days of losing, having suspended, or being refused any such accreditation. Fourth, on 4 December 2013, the Commission made minor amendments to the classification levels to reflect the change in its name from Fair Work Australia to the Fair Work Commission.

Consideration – did the Fitness Industry Award cover the applicant’s employment in the claim period?

121    In the preceding sections of these reasons, I have set out at considerable length the issues that fall to be determined in interpreting the Fitness Industry Award, and the parties’ submissions in relation to those issues. I now turn to consider those issues, by first addressing the applicable principles of construction, and then the principal issue whether the applicant’s employment, during the claim period, fell within classification levels 4, 4A, or 5 of the Award.

Principles of award construction

122    The Award is not itself a statute, but is an instrument that is given the force of law by s 45 of the Fair Work Act: see, Ex parte McLean (1930) 43 CLR 472 at 479 (Isaacs and Starke JJ). The Award falls to be construed in accordance with well-established principles. It is a core element of those principles that the process of construction of an instrument having legislative or quasi-legislative force is not a search for the actual subjective intent of the makers of the instrument, but the process of construction must direct attention to the words that are actually used: see, Zheng v Cai [2009] HCA 52; 239 CLR 446 at [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ); Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] (French CJ and Hayne J); City of Wannaroo v Holmes [1989] FCA 533; 30 IR 362 at 379 (French J). That is because the inquiry is directed to the proper construction of what the instrument says, and not what it was meant to say. In undertaking the inquiry, the objective, expressed intention is to be gathered from the text of the instrument in light of context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2] (Gleeson CJ and McHugh J); SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). References in the authorities, such as Kucks v CSR Ltd [1996] IRCA 141; 66 IR 182 at 184 (Madgwick J) to “the meaning intended by the framer(s) of the document” should be understood in this way. An allied principle applies to the construction of written contracts: see, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 at [16] (Kiefel CJ, Bell and Gordon JJ).

123    As the summaries of the parties’ submissions demonstrate, the submissions of the applicant and of the respondents relied on extensive references to context, including references to the background to the making of the Award and to anterior state-based awards. In relation to the construction of statutes, the modern approach is that regard should be had to context and to purpose, whether or not there is some ambiguity that is to be resolved: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); SZTAL v Minister for Immigration and Border Protection at [14] (Kiefel CJ, Nettle and Gordon JJ). Reference to context and purpose is an aid to the proper construction of the text that has been employed, and recourse may be made to materials that are extrinsic to the instrument to assist in the identification of context and purpose. But context is not an end in itself. A consideration of the language contained in the text of the instrument remains both the starting point and the end point of the task of construction: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

124    Principles of this type, which are of general application, have long been applied to the construction of awards, and other industrial instruments, as the authorities referred to by French J in City of Wannaroo v Holmes at 378-379, by Burchett J in Short v F W Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 at 517-520, and by the Full Court in Workpac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] demonstrate. In Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503, Street J, in a frequently cited passage, stated –

Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, 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, as this award in fact did, from an agreement between 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.

[Emphasis added.]

125    Street J’s reference in the emphasised words in the above passage to giving consideration and weight to every part of the award, and to endeavouring to give it a meaning consistent with the general intention of the parties to be gathered from the whole award, accords with the statements of principle of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority at [69] –

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined ‘‘by reference to the language of the instrument viewed as a whole” (46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).

[Citations omitted.]

126    The significance of history and context as an aid to the construction of awards was referred to by Burchett J in Short v F W Hercus Pty Ltd in another frequently cited passage, at 518 –

Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.

127    The authorities relating to the construction of industrial instruments illustrate that context may shed light on the proper meaning to be given to expressions that take their colour from the industrial context. The history of provisions of an industrial instrument may also demonstrate that particular expressions have been the subject of interpretation by the courts or industrial tribunals, which may then be taken to have an accepted meaning when, in the same or a similar context, they find their way into later instruments: Short v FW Hercus Pty Ltd at 517-518. 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”.

128    Part of the context in construing an industrial instrument may, in an appropriate case, be a recognition that the instrument may have been drafted by lay persons with a practical bent of mind, with the consequence that the construction of ambiguous terms should favour a sensible and practical industrial result, shorn of narrow legalism and pedantry: see, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; 269 FCR 262 at [5] (Allsop CJ); Kucks v CSR Ltd at 184 (Madgwick J). There are, however, limits on the extent to which the resolution of questions of construction may be driven by reference to history and context, and a liberal approach to construction, because ultimately what is to be determined is the proper construction of the instrument based on the objective meaning of the text. The Fair Work Act contains provisions that require the Commission to publish its written decisions, reasons, approved enterprise agreements, and variations to modern awards, with the consequence that they are widely available to members of the public: s 168, s 601. There is much to be said for the notion that instruments such as awards should be reasonably capable of being understood and implemented by the participants in the industries to which they apply by reference to the language employed in the instrument itself, without having to investigate and ascertain the pedigree of the instrument in order to identify some latent meaning to be discerned by an analysis of the mental states or purposes of others: see, The Nine Brisbane Sites Appeal at [8] (Allsop CJ). In City of Wanneroo v Holmes at 380, French J stated –

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

129    In addition, industrial instruments such as awards are liable to be binding on persons who took no part in their making. To adapt the words of Lord Simon of Glaisdale in Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 237, in a society living under the rule of law, employers and employees are entitled to regulate their conduct according to what an award says, rather than by what it was meant to say, or by what it would have otherwise said if a newly considered situation had been envisaged.

130    The terms of an instrument may often be imperfect. The working out of the terms of an award or other industrial instrument occurs within the legislative framework for resolving such matters where the interests of relevant parties may be taken into account. Under that framework, an award may be the product of compromises that have been reached to achieve resolution, or by compromises that are imposed by the industrial tribunal. The product of those compromises may be the presence of anomalies that are to be found in the terms of the document. The task of the Court is to construe any particular compromises that are reflected in the terms of the document: see, in another context, Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [6] (Gleeson CJ, Gummow, Hayne and Heydon JJ) and at [126] (McHugh J). It is not for a court called upon to construe the instrument to “reach a compromise of those compromises”: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; 77 ALJR 1806 at [43] (McHugh, Gummow, Callinan and Heydon JJ). If there is any ambiguity, oversight, or error in the terms of an award, then s 160 of the Fair Work Act empowers the Commission, including at its own initiative, to make a determination varying a modern award to remove an ambiguity or uncertainty, or to correct an error. This may occur if the expressed intention differs from what might have been thought to be the actual intention of the maker of the instrument, or of the interested parties: see, Re Brack; ex parte Operative Painters and Decorators Union of Australia (1984) 51 ALR 731 at 733 (Mason, Murphy, Wilson, Brennan and Deane JJ).

Some observations

131    As the background context to the Award indicates, the Award was made by the Commission as part of the award modernisation process in terms that involved a rejection of the separate draft award to cover swimming coaches that had been proposed by the joint submission of ASCTA and Swimming Australia. As its text indicates, the Award covers employees in diverse classifications, where the criteria in some of the classifications include specific and detailed provisions about qualifications.

132    As I have mentioned, there was extensive reference and reliance by the parties on antecedent awards and associated documents. I found this history and context helpful and informative, as I did with the affidavit and oral evidence of the witnesses. I have therefore been able to approach the construction of the Award with an appraisal of the relevant history and the industrial context. However, there is nothing particular about the antecedent awards that I consider has any determinative bearing on the construction of the text of the disputed provisions of the Award. Moreover, because the task at hand is to construe the Award, which is complex enough, I have not found it necessary to consider the contestable questions concerning whether swimming coaches in the position of the applicant would have been covered by the antecedent Queensland, New South Wales, or Victorian awards.

133    At times, the parties’ submissions had a tendency to stray into submissions that sought to identify the subjective intention of the Commission in making the Fitness Industry Award. The parties referred to the “framers” of the Award, and sought to identify the framers’ intentions in drafting the Award, and to rely upon that putative intention in support of their own constructions of the Award. This was understandable in a sense, because in Kucks v CSR Ltd at 184, Madgwick J referred to “the search for meaning intended by the framer(s) of the document”. However, this must be understood as describing an inquiry as to the objective meaning of the Award, to which I referred at [122] above. There was also a tendency to seek to impute to the Commission the subjective intention of others, such as ASCTA and Swimming Australia, as disclosed by their joint submission to the Commission as part of the award modernisation process. As I have explained above, that is not the correct approach to the construction of the Award: the process of construction is not a search for the subjective intention of the makers of the instrument.

Classification level 4

134    I have concluded that the applicant’s employment did not fall within classification level 4. As stated above in summarising the parties’ submissions, the parties agreed that the applicant satisfied the supervision, initiative, and judgment conditions in clauses B.5.1 and B.5.2, and I accept that position. In my view, the key question in deciding the preliminary issue for determination is the proper construction of the words “may also be” in clause B.5.3. In particular, the key question is whether employees working in the roles contemplated by the sub-clauses to that clause, namely swimming teachers (sub-clause (a)), swimming coaches (sub-clause (b)), and pool lifeguards (sub-clause (c)), must satisfy the prescriptions of that clause in order to fall within the classification level. On that issue, I prefer the construction advanced by the respondents.

135    When the Award is viewed as a whole, some observations may be made about the architecture of the classification structure, which makes express reference to swimming teachers and coaches in three escalating levels of qualifications and experience –

(1)    In relation to level 2, clause B.2.1 provides that an employee at that level will have completed 456 hours training at level 1, or have a swim teacher or coach qualification. The swim teacher or coach qualifications are not left at large, but are referred to with some particularity in sub-clauses B.2.2(b)(xiii) and (xiv), which are set out under [42] above. Those qualifications are described in the Award as being those applicable to a beginner swimmer and water safety teacher, and a coach of beginner swimmers.

(2)    In relation to level 3, to the extent that it refers to swimming teachers, it provides for the same qualifications that are required to engage level 2, but introduces additional requirements relating to the performance of workshops, hours of teaching, and a second qualification. In relation to swimming coaches, level 3 introduces the criterion –

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

(3)    To the extent that level 4 refers expressly to swimming teachers and swimming coaches, it builds upon level 3. In relation to swimming teachers, the required qualifications remain the same as those required for level 2, but with the addition of a third qualification, and the required level of experience and the performance of workshops, measured in hours, is greater. In relation to the coaching of beginner swimmers, level 4 reproduces the requirement of a current Bronze Licence or equivalent, and makes provision for additional requirements referrable to performance of workshops and hours of coaching.

(4)    No classification above level 4 makes any express reference to swimming teachers, or swimming coaches, let alone any qualifications that, on the evidence, are directly associated with the teaching or coaching of swimmers.

136    I shall approach the construction of the Award on the basis that significance should be given to the detailed prescription of qualifications and experience for swimming teachers and coaches. These detailed provisions are not the stray words or the infelicitous expressions of a lay drafter or tribunal that can be treated as mere surplusage that should make way in order to give effect to some more general operation of the Award. The significance of the classification criteria is manifest, because the criteria are fortified by the terms of clause B.10 of Schedule B of the Award, which requires that employees hold the relevant accreditations required by the classification descriptors at all times, and imposes an obligation on employees to advise their employer within 14 days of any loss, refusal, or suspension of a required accreditation. These features of the Award provide the context for the construction of the phrase “may also be”, which appears in clause B.5.3.

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.

138    It follows that in order to engage the criteria for the level 4 classification, the applicant must show that for the claim period he was –

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

(2)    the holder of a current Bronze Licence for coaching, or equivalent.

139    The applicant has not persuaded me that the coaching of the squads that he coached for the claim period, including the last season, involved coaching “beginner swimmers”. The starting point is to construe the term “beginner swimmers”, which is not defined in the Award. The respondents submitted that the ordinary meaning should be given to the word “beginner”, and referred to dictionary definitions of “beginner” in the Macquarie Dictionary, and in the Oxford English Dictionary -

               Someone who has recently begun to learn a skill; novice

(Macquarie Dictionary, Seventh Edition)

                One beginning to learn; a novice, a tyro

(The Oxford English Dictionary, Second Edition)

140    However, while dictionary definitions may be informative, the task of construing the Award is more than taking the text of the Award in one hand, and a dictionary in the other: Cunard SS Co v Mellon (1922) 284 F 890 at 894 (Judge Learned Hand), cited in Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [10] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). The following contextual features are also relevant to construing the term “beginner swimmers” in the relevant clauses of the Award –

(1)    Classification level 2 refers to the duties of a “beginner swimming and water safety teacher”, and also separately introduces the phrase, “coaching beginner swimmers (including mini and junior squads)”, which is also deployed at level 3 and level 4.

(2)    The coaching qualifications that are aligned with coaching “beginner swimmers” are the ACSTA Junior Squad and Assistant Coach qualification at level 2, which is the entry level qualification for coaches as set out at [18(1)] above, and also the Bronze Licence at level 3 and level 4, which is the next highest qualification which Mr Stehr, who is currently the Vice President of ASCTA, described as the entry level qualification for coaches who work unsupervised. There is no reference in the Award to the higher qualifications of Silver Licence or Gold Licence.

(3)    The unchallenged evidence of Mr Stehr was that, based upon his experience in Queensland, a squad of juniors who have completed a learn to swim program and who have achieved a basic level of competency and want to pursue swimming as a sport, is often referred to as a “junior or mini squad”. Mr Ward, who is the CEO of ASCTA, gave evidence to similar effect.

(4)    The junior squads were referred to by Mr Stehr as transitional squads in which a swimmer starts learning the sport of swimming before moving to a more advanced squad, involving regular competition and an aspiration to swim at state level. Further along the spectrum are national and high performance squads.

141    Having regard to this context, I construe the reference to “beginner swimmers” in the Award 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. As stated above, the applicant has not persuaded me that the coaching of the squads that he coached for the claim period, including his last season when he coached the MVC Junior Squad as well as the National Age Squad, involved coaching “beginner swimmers”. The evidence about the training schedules for the MVC Junior Squad for the 2017-2018 season bears this out. The MVC Junior Squad was not an entry level swim squad for swimmers who had recently graduated from a learn to swim course. During the relevant season, there were two squads below the MVC Junior Squad in the MVC squad hierarchy, namely the Livingstone Squad and the Rooney Squad. The MVC Junior Squad was the third squad up in the MVC squad hierarchy, in respect of which the MVC Member Handbook for the relevant season stated as follows –

The objective of the MVC Junior squad is to develop skills in all strokes and to aspire to qualify and perform well at Victorian Age Championships.

Competition Calendar

[The handbook entry then listed 16 competitions being held between 23 July 2017 and 23 June 2018]

Squad Breaks

•    18 December 2017 to 7 January 2018

•    22 March to 3 April 2018 (Alternate timetable for all Junior finalists)

Training Timetable

142    The MVC Junior Squad was made up mainly of swimmers seeking to achieve state-qualifying times, being a time that was sufficient to qualify for entry into a race at a state championship meet. The squad also included some swimmers who had already achieved a state-qualifying time, and who would ordinarily move up to a higher squad some time after doing so. The applicant described the MVC Junior Squad as being the equivalent of the State Development Squad described in the MSAC program, to which I referred at [34] above. I am not persuaded within the context of the terms of the Award and the swimming industry, including MVC’s squad structure, that such swimmers, who are striving to achieve state qualifying times, are to be characterised as “beginner swimmers”.

143    The position in relation to the earlier seasons in the claim period is even clearer. For those seasons, the applicant was coaching squads of swimmers who had achieved state or national qualifying times. Aligned with the coaching of squads of swimmers who had reached that level of achievement was the applicant’s Silver Licence qualification, which had as a prerequisite that the holder had coached swimmers who had achieved national age qualifying times, and had attended national age championships with his or her athletes.

144    In relation to the requirement that the employee hold a current Bronze Licence or equivalent, I find that the applicant did not hold a current Bronze Licence for any part of the claim period. I find that the applicant held a Silver Licence from April 2010. There was in evidence a letter from ASCTA to the applicant dated 22 April 2010, which advised him that upon being issued with an ASCTA Silver membership/licence card, he could destroy his Bronze card. I infer that upon achieving his Silver Licence in April 2010, the applicant’s Bronze Licence was superseded, with the consequence that it ceased to be current.

145    On the assumption that the applicant did not coach beginner swimmers, and did not hold a current Bronze Licence during the claim period, the applicant submitted that the qualifications prescribed for classification level 4 were minimum requirements, which were met by the superior qualification and experience which the applicant had. I do not accept that submission. 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.

146    The applicant submitted that it was anomalous that a coach should cease to have award coverage upon obtaining a Silver Licence accreditation. It is, of course, quite possible that the Award gives rise to anomalies. Whether that is so depends upon the standpoint of the observer. The process of compromise, including the balancing of competing interests which occurred when the Commission made the Award, is reflected in the text of the Award. I decline to find that there is any necessary anomaly in holding that the Award covers swimming teachers, and coaches of beginner swimmers who are current Bronze Licence holders, but not those coaching at higher levels. Weighing against the applicant’s submission that his exclusion from award coverage is anomalous is that ordinary people, such as coaches, parents, teachers, volunteers, and others involved in swimming clubs, are responsible for ensuring that swimming clubs comply with the Award. In seeking to do that, they will likely give attention to the text of the Award. The relevant clauses of the Award specifically draw in coaches of beginner swimmers who are current Bronze Licence holders. In my view, it is 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. If within the swimming industry there is perceived to be some anomaly in the terms of the existing Award in this respect, then the possible remedies include approaching the Commission to seek a variation to the Award.

Classification level 4A

147    I conclude that the applicant’s employment did not fall within classification level 4A. As stated above, while the applicant maintained his claim that his employment fell within classification level 4A, he accepted that he faced additional difficulties in proving that case. The applicant’s claim to fall within this classification level may be dismissed relatively succinctly. First, as I have found, the applicant did not perform the duties of a level 4 employee, and therefore did not engage the opening words of clause B.6.1. Second, the applicant did not hold a “Fitness Industry AQF Certificate Level IV” qualification. The documents tendered as evidencing the history and context of the Award show that this qualification has never been associated with swimming coaches, but rather it is associated with the fitness industry more generally. The evidence of Mr Ward to which I referred at [18], and which I accept, was that the swim coaching qualifications are not, and have never been, approved and accredited by ASQA, or recognised in the AQF. I am therefore not persuaded that the applicant’s Silver Licence was an equivalent qualification for the purposes of classification level 4A.

Classification level 5

148    The applicant’s employment did not fall within classification level 5. As stated above and as with classification level 4A, while the applicant maintained his claim that his employment fell within classification level 5, he accepted that he faced additional difficulties in proving that case. The applicant’s claim to fall within this classification level may also be dismissed relatively succinctly. In my view, and for the reasons given above, swimming coaches are drawn into classification levels 2, 3, and 4, if they meet the specific criteria of those classification levels. Classification level 5 is not directed to swimming coaches. Moreover, the applicant did not hold a “Fitness Industry AQF Diploma” level qualification, and nor do I find that his swimming coach’s Silver Licence was in any way an equivalent. It also follows that the applicant has not persuaded me that he was employed to carry out work associated with the classification of “Fitness Trainer or Fitness Specialist”, or that he demonstrated an ability to train or develop programs for special groups, as those expressions are to be understood within the context of classification level 5, which is not directed to swimming coaches.