| [2018] FWCFB 3914 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 156 - 4 yearly review of modern awards
4 Yearly Review of Modern Awards: Fitness Industry Award 2010
(AM2017/52)
DEPUTY PRESIDENT SAMS |
SYDNEY, 9 JULY 2018 |
Fitness Industry Award 2010 – substantive issues – classification definitions for swim industry teachers and coaches – consent of major parties – changes meet the Modern Awards Objective – Determination made – Award varied.
BACKGROUND
[1] The Fair Work Commission (the ‘Commission’) is presently conducting a 4 yearly review of modern awards, pursuant to the statutory command under s 156 of the Fair Work Act 2009 (the ‘Act’). This Decision concerns a review by this Full Bench of the Fitness Industry Award 2010 (the ‘Award’) in respect to a discrete issue identified by the Award Modernisation Full Bench on 30 October 2017 in 4 yearly review of modern awards – Award stage – Group 3 [2017] FWCFB 5536.
[2] The Full Bench was there dealing with the review of 14 Group 3 awards in respect to the outstanding substantive issues. At paragraphs [162]-[166], the Full Bench set out the relevant award modernisation issues to be determined:
‘[162] A number of other items from the revised summary of submissions remain in dispute. These items can be broadly categorised into two groups:
1. Entitlement of casual employees to overtime (items 6, 9, 10, 11, 11B, 11C and 29); and
2. Classification definitions for the swim industry (items 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28).
…
[164] In relation to the second category of disputed items, Directions were issued on 7 February 2017 requiring parties to file further material in relation to classification descriptions for swimming coaches. Submissions have been received from:
● The Australian Workers’ Union;
● Australian Swim Schools Association;
● Australian Swimming Coaches and Teachers Association; and
● Australian Business Industrial and the NSW Business Chamber.
[165] Pursuant to the Directions issued on 14 December 2016, outstanding matters would be determined by the Full Bench on the basis of the material filed without an oral hearing unless so requested. However, on 7 February 2017 the AWU requested a hearing in regards to the two broad categories of dispute. In light of the nature of the dispute, the material received, and the AWU’s request, we consider both categories of disputed items require determination by a separately constituted Full Bench.
[166] There are no other outstanding matters for this Full Bench to determine in relation to the Fitness Award.’
[3] This Full Bench was charged with determining the classification definitions for the swim industry in the Award. A differently constituted Full Bench is dealing with other outstanding substantive issues in the Award.
[4] We note that the question of the classification definitions for the swim industry, including the appropriate classification of ‘trainee swim instructors’, has been the subject of a number of conferences with interested parties (the ‘major parties’) convened by Deputy President Clancy, and more lately by Deputy President Sams. The major parties have also been involved in direct negotiations with each other on the basis of draft proposals exchanged between them.
[5] In the latest conference convened by Deputy President Sams on 23 April 2018, it appeared the major parties could not reach final agreement on the changes to the Award to reflect the Modern Awards Objective under s 134 of the Act. The Presiding Member issued directions for a hearing of the matter commencing on 26 and 27 June 2018, before this Full Bench. The second day of hearing was not required. Shortly before the hearing, the major parties - the Australian Swim Schools Association Ltd (‘ASSA’), the Australian Swimming Coaches and Teachers Association (‘ASCTA’) and The Australian Workers’ Union (“the AWU’) - advised that after several further rounds of discussions, agreement had been reached as to amendments to the Award on the classification definitions issue. No other party objected to the agreed position of the major parties.
[6] At the hearing on 26 June 2018, Mr S Crawford appeared with Mr G Stephens for the AWU; Mr M Taylor with Mr R Gage for ASSA; and Ms N Shaw appeared for ASCTA. Australian Business Industrial (ABI) and NSW Business Chamber Ltd advised in writing that they were content for the Full Bench to be satisfied the proposed variations meet the Modern Awards Objective and do not vary or set wages for classifications under the Award.
SUBMISSIONS
[7] Mr Crawford tendered a schedule of marked up variations to the Award (Exhibit 1 annexed to this Decision) and a draft Determination reflecting the proposed variations (Exhibit 2). Mr Crawford submitted that the variations clarify the intention of the major parties as to the current arrangements applying to swim instructors. There are no changes to the classification structure, per se, or the value of the work performed by the relevant employees in the proposed variations.
[8] Mr Crawford summarised the changes and identified their purpose as follows:
(a) Employees who are directed by their employer to conduct a swimming lesson without direct supervision, as part of structured training, will fall under B2 Level 2 of the Award, even if the other existing requirements are not met.
(b) A Level 2 employee may undertake basic pool plant duties, such as water quality testing, unless such work requires a higher or trades qualification.
(c) Removing the corporate branding from training packages to generic training.
(d) Only paid teaching hours will count towards higher classification attainment.
(e) Any dispute concerning the correct classification of a swimming teacher or coach will be referred to the Commission for determination.
[9] Mr Taylor submitted that Exhibit 2 meets and addresses the issues of concern to ASSA. He put that in respect to the Modern Awards Objective as to the impact on the economy (s 134 of the Act) will be positive in that the clarification of the Award descriptors will provide efficient, effective and improved water safety, particularly for children and elderly persons. Further, there will be a neutral impact on the rates of pay and conditions which currently apply in the swim industry. The changes are necessary to enhance the industry’s understanding of how the Award applies. Ms Shaw, on behalf of ASCTA, supported the submissions of Mr Taylor and Mr Crawford. All the major parties submitted the proposed changes meet the Modern Awards Objective and if the Full Bench is minded to make a Determination as sought in Exhibit 2, it should be effective seven days from the date of Decision.
CONSIDERATION
[10] In exercising the Commission’s functions under s 156 of the Act, the Full Bench must consider whether the proposed changes are necessary to satisfy the Modern Awards Objective. The specifics of the Modern Awards Objective are set out at s 134 of the Act as follows:
‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.’
[11] The effect of the variations to the Award agreed by the major parties is to ensure that the appropriate classification definitions for swimming teachers and coaches are set out in the Award classification structure. The inclusion of these variations, and other consequential variations, will recognise the existing practices in the industry in respect to the employment of such employees under the Award. Given the practical and sensible effect of these variations, we are satisfied the variations proposed are necessary to ensure the Award achieves the Modern Awards Objective. We also accept that the variations are appropriate having regard to that Objective and the circumstances of the Award more generally.
[12] Accordingly we intend to vary the Award, giving effect to our Decision, and to make a Determination essentially in the terms of Exhibit 2. The Determination will be issued in conjunction with this Decision. The variation will operate on and from 16 July 2018.
DEPUTY PRESIDENT
Appearances:
S Crawford and G Stephens for the AWU.
M Taylor and R Gage for ASSA.
N Shaw for ASCTA.
Hearing details:
2018.
Sydney:
June 26.
Printed by authority of the Commonwealth Government Printer
<PR608648>
Exhibit 1
[Sched B varied by PR999528, PR515150, PR531302, PR542214]
(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;
(viii) door duties, attending a cloakroom or car park not involving the handling of cash; and
(ix) swimming and water safety teaching. To avoid doubt, an employee is classified at Level 2 or above if their duties include being responsible for the provision of any part of swimming and water safety teaching without being directly supervised as part of structured training/learning.
B.2.1 An employee at this level has:
(a) completed 456 hours training at Level 1 so as to enable the employee to perform work within the scope of this level;
(d) a swim and water safety teacher or coach qualification; or
(e) duties which include being responsible for the provision of any part of swimming and water safety teaching without being directly supervised as part of structured training/learning.
(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/or is primarily engaged in one or more of the following duties:
(i) assisting with classes and directing activities in a centre;
(ii) attending to equipment and displays, e.g. pool attendant – including basic pool plant duties (e.g. water quality testing) unless this work is performed by an employee at a higher classification level;
(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;
(i) beginner swimming and water safety teacher, being a person who provides any part of swimming and water safety teaching without being directly supervised as part of structured training/learning or the holder of any current qualification with the following competencies:
SISCAQU002 Perform basic water rescues
SISCAQU008 Instruct water familiarisation, buoyancy and mobility skills
SISCAQU009 Instruct water safety and survival skills
SISCAQU010 Instruct swimming strokes
These competencies reflect the Australian Skills Quality Authority’s (ASQA) approved skill set for a Swimming and Water Safety Teacher. Any amendments to these competencies made by ASQA will apply for the purposes of interpreting this award.
(ii) a coach of beginner swimmers (including mini and junior squads), being a holder of a current recognised “Junior Coach and Assistant Coach” swimming coaching qualification or equivalent.
B.3.3 An employee at this level may also be:
(a) an intermediate swimming and water safety teacher, being a holder of any current qualification with the competencies detailed in clause (xiii) above, who has:
(i) performed 12 hours per year of recognised workshops and 250 hours of paid swimming and water safety teaching under this award and who holds a second recognised instructing qualification, or
(ii) delivered 350 hours of paid swimming and water safety teaching under this award; or
(b) a coach of beginner swimmers (including mini and junior squads), being a holder of a current recognised “Bronze Licence for Coaching” swimming coaching qualification 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
(d) 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 substituted by PR542214 ppc 04Dec13]
B.4.2 Any dispute concerning an employee’s entitlement to be paid at Level 3A may be referred to the Fair Work Commission for determination. The Fair Work Commission 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 (xiii) above, who has:
(i) performed 12 hours per year of recognised workshops and 500 hours of paid swimming and water safety teaching under this award and who holds a third recognised teaching qualification, or
(ii) delivered 700 hours of paid swimming and water safety teaching under this award; or
(b) a coach of beginner swimmers (including mini and junior squads), being a holder of a current recognised “Bronze Licence for Coaching” swimming coaching qualification 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.
(e) 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-recognised 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 an Fitness Industry AQF Certificate Level IV qualifications relevant to the classification in which they are employed or equivalent;
(f) 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 substituted by PR542214 ppc 04Dec13]
B.6.2 Any dispute concerning an employee’s entitlement to be paid at Level 4A may be referred to the Fair Work Commission for determination. The Fair Work Commission 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;
(g) is employed to carry out work associated with the classification of Fitness Trainer or Fitness Specialist; and
(h) 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;
(i) supervision, training and co-ordination (including rostering) of employees within their respective work area to ensure delivery of service;
(j) those of a trade qualified person in a single trade stream and the giving of trade directions to Level 1 to 5 employees;
(k) supervision of floor staff; or
(l) 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;
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
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;
(m) centre administration involving supervision of staff and systems and co-ordinating events; or
(n) 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 0, 0, 0, 0, 0, 0, 0, 0, 0 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.
B.11 Any dispute concerning the correct classification for a swimming and water safety teacher or swimming coach will be referred to the Fair Work Commission for determination.