In a decision highlighting the complicated task of determining award coverage, the Full Court of the Federal Court has allowed a former senior swimming coach to pursue his six-year underpayment claim after a Court rejected that his superior qualifications excluded him from award coverage.
The issues – did Mr King's qualifications make him 'too senior' for award coverage?
In King v Melbourne v Vicentre Swimming Club Inc [2021] FCAFC 123, Mr King was employed as a swim coach by Melbourne Vicentre Swimming Club Inc . He coached various 'middle range' squads, including children aged 7-12 who were competing for the first time or swimming for social reasons, and a more senior squad that had members who were 'very capable and competitive swimmers'. Over the period in which Mr King made his claim, Mr King held a Silver Licence issued by the Australian Swimming Coaches and Teachers Association.
Mr King commenced proceedings in the Federal Court claiming that the Club had underpaid him as they had failed to pay him in accordance with the penalty rates and allowances in the Fitness Industry Award 2010 (FI Award). Mr King contended that he was covered by the FI Award as a Level 4 classification, however the Club claimed he did not fall within the classifications of the FI Award, and, therefore, was not entitled to those penalty rates.
While the parties agreed that Mr King met the two mandatory requirements of a Level 4 classification, the Club denied Mr King was covered by the FI Award as he did not meet the criteria specific to swim coaches. These stated that a Level 4 employee 'may also be' a coach of beginner swimmers, being a holder of a current recognised 'Bronze Licence for Coaching' who has the requisite experience. The Club claimed that Mr King did not meet this criteria as the requirements acted as a 'ceiling', and that Mr King's level of work (coaching more advanced swimmers) and qualification (Silver Licence) meant he was too senior to be a Level 4 classification under the FI Award.
At first instance, the Federal Court held the Mr King's qualifications and experience were outside of the scope of the classifications of the FI Award and dismissed Mr King's underpayment claim. Mr King appealed the decision to the Full Court of the Federal Court.
Were the requirements a 'ceiling'?
Despite the Full Court finding the experience criteria set out in Level 4 was 'not optional' and required employees to meet the experience set out in the classification at a minimum, the Full Court found the requirements were just that – a minimum.
Rejecting the Club's claim that the experience criteria in Level 4 acted as a 'ceiling', the Full Court stated that a number of factors pointed towards employees that exceed those minimum requirements being covered by the FI Award. These included:
- the minimum requirement for next classifications were the maximum for the previous classification (i.e. the minimum experience for a Level 3 was the maximum experience for a Level 2), yet the classification levels above Level 4 did not have any higher accreditation requirements for swim coaches
- some of the experience criteria related to hours of coaching and it would not make sense, nor work, if a person who was required to, and held, a certain amount of hours of coaching was then excluded from award coverage as soon as they coached further hours (i.e. the level required 700 hours of coaching as a minimum, so how could someone who delivers their 701st hour of coaching then lose coverage)
- given Level 4 had the highest qualification and experience criteria, odd outcomes could be produced if this acted as a maximum (i.e. it could disincentivise those who meet the criteria from obtaining superior qualifications for fear of being excluded from award coverage)
- there was no reason for excluding swim coaches from the FI Award simply because their primary employment purpose was to coach swimmers who were no longer beginners
- the higher classifications of the FI Award covered swim coaches who had achieved further career progression (i.e. supervisors and coordinators), which went against the qualifications being intended as a maximum (if such were the case, an employee would drop out of award coverage as a swim coach with higher experience but would be covered again if they then became a supervisor or coordinator)
- the FI Award did not expressly state that requirements were maximum requirements.
It followed that the levels of experience were only a minimum and that Mr King, despite holding a Silver Licence and coaching swimmers above those at a beginner level, still fell within the classification structure as a Level 4.
What does this mean for me?
While this decision relates specifically to the classifications of the FI Award, the decision stresses that, just because an employee has qualifications above those required by an award, that does not mean the employee will be excluded from award coverage.
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The analysis engaged in by the Full Court demonstrates the complexity and difficulty in determining award coverage and highlights that award coverage needs to be looked at in the context of a number of factors, with employers unable to dismiss award coverage based solely on seniority.
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