Qual­i­fi­ca­tions a floor, but not a ceil­ing, for award cov­er­age: FCAFC

In a deci­sion that has affirmed what those work­ing in the indus­tri­al rela­tions space already knew – that fit­ting an employ­ee’s role into an award clas­si­fi­ca­tion is hard – a full court of the Fed­er­al Court in King v Mel­bourne Vicen­tre Swim­ming Club Inc [2021] FCAFC 123 has over­turned a deci­sion of Jus­tice Whee­la­han that found a swim­ming coach was not cov­ered by the Fit­ness Indus­try Award 2010 (the Award).


The appli­cant had made an under­pay­ment claim based on penal­ty rates and allowances he alleged were owed to him under the Award. 

The rel­e­vant clas­si­fi­ca­tion (Lev­el 4) sets out gen­er­al require­ments in rela­tion to super­vi­sion and judg­ment, which were not con­test­ed. It goes on to say that to fit with­in the Lev­el 4 clas­si­fi­ca­tion an employ­ee (as rel­e­vant to the appli­cant) may also be” a coach of begin­ner swim­mers hold­ing a cur­rent recog­nised Bronze Licence for Coach­ing’ qual­i­fi­ca­tion who has deliv­ered the num­ber of coach­ing hours specified. 

The appli­cant, who has a Sil­ver Licence qual­i­fi­ca­tion and coached mid­dle lev­el squads of swim­mers, had argued that the words may also be” meant some­one did not have to pos­sess the exact expe­ri­ence and qual­i­fi­ca­tions list­ed in the clas­si­fi­ca­tion descrip­tors and that, although they imposed a floor” that must be met to fall with­in the clas­si­fi­ca­tion, the clas­si­fi­ca­tion descrip­tors did not impose a ceil­ing”. That meant, accord­ing to the appli­cant, a swim­ming coach with qual­i­fi­ca­tions and expe­ri­ence in excess of the clas­si­fi­ca­tion descrip­tors was not out­side of its coverage. 

Whee­la­han J dis­agreed with the appli­can­t’s interpretation.

In reach­ing his deci­sion his Hon­our con­sid­ered the his­to­ry of the Award to pro­vide the indus­tri­al con­text to the clas­si­fi­ca­tion struc­tures, as well as the text of the Award itself (to give it mean­ing con­sis­tent with that his­to­ry). How­ev­er his Hon­our also acknowl­edged that mod­ern awards, like any indus­tri­al instru­ment, need to be under­stood sep­a­rate from their his­to­ry so that they may be used and inter­pret­ed by par­tic­i­pants in par­tic­u­lar indus­tries; par­tic­u­lar­ly when, as was the case here, there is the threat of pecu­niary penal­ties for non-com­pli­ance with an award provision.

In light of the above, and when con­sid­er­ing the Award as a whole, his Hon­our con­strued the words may also be” as a require­ment to have the qual­i­fi­ca­tions and expe­ri­ence set out in the Lev­el 4 clas­si­fi­ca­tion. That was based pre­dom­i­nate­ly on the fact the Award pre­scribes manda­to­ry qual­i­fi­ca­tions and expe­ri­ence for swim­ming teach­ers and coach­es for accred­i­ta­tion pur­pos­es, and because the Lev­el 4 clas­si­fi­ca­tion pro­vi­sions are so spe­cif­ic. Accord­ing­ly, the appli­can­t’s qual­i­fi­ca­tions and expe­ri­ence was held to be out­side the scope of the Award.


The Full Court agreed with the analy­sis of his Hon­our at first instance that although indus­tri­al his­to­ry and prac­tices may pro­vide con­text, and are impor­tant in the event of ambi­gu­i­ty in the inter­pre­ta­tion of an award pro­vi­sion, inter­pret­ing an award should begin with an analy­sis of the ordi­nary mean­ing of the words used (cit­ing City of Wan­neroo v Holmes [1989] FCA 369). 

Hav­ing regard to the archi­tec­ture of the clas­si­fi­ca­tion struc­ture” of the Award, the Full Court agreed with Whee­la­han J that in order to fall with­in the Lev­el 4 clas­si­fi­ca­tion an employ­ee must meet all of the require­ments for the clas­si­fi­ca­tion Lev­el, and that the words may also be” should be inter­pret­ed to mean the spe­cif­ic require­ments in rela­tion to expe­ri­ence and qual­i­fi­ca­tions were not optional. 

How­ev­er, the Full Court dis­agreed with Whee­la­han J’s con­struc­tion of what is required in terms of expe­ri­ence and qual­i­fi­ca­tions to fall with­in the Lev­el 4 clas­si­fi­ca­tion, and accept­ed the sub­mis­sions of the appli­cant that the clas­si­fi­ca­tion descrip­tors only pre­scribe a min­i­mum require­ment. That was based on an analy­sis of the struc­ture and words used in the clas­si­fi­ca­tion sched­ule, the text of the Award itself and the indus­try in which the Award operates. 

The Full Court con­sid­ered it par­tic­u­lar­ly rel­e­vant that while oth­er Lev­els in the clas­si­fi­ca­tion struc­ture have ceil­ings” and the descrip­tors in Lev­el 4 are evi­dent­ly the ceil­ing” for Lev­el 3, there is no dis­cernible ceil­ing” for Lev­el 4 (and, indeed, noth­ing in the clas­si­fi­ca­tion Lev­els about swim coach­es at all after Lev­el 4).

In terms of the prac­ti­cal oper­a­tion of the Award, their Hon­ours con­sid­ered the sit­u­a­tion where an employ­ee already cov­ered by Lev­el 4 coach­es hours, or obtains qual­i­fi­ca­tions, in excess of what is required by that clas­si­fi­ca­tion. It would be non­sen­si­cal, in the view of the Full Court, for that employ­ee to then fall out­side the scope of Lev­el 4 coverage.

Impor­tant­ly, in reach­ing their con­clu­sion, the Full Court placed lit­tle rel­e­vance on the his­to­ry of the Award (despite the amount of time Whee­la­han J had ded­i­cat­ed to that issue at first instance) not­ing at [87] that:

There will of course be cas­es where the his­to­ry of an indus­tri­al instru­ment sheds light on con­struc­tion­al choic­es pre­sent­ed by its text, so as to illu­mi­nate mean­ings that might oth­er­wise be obscure. This is not one of those cases.”

It was empha­sised by their Hon­ours that giv­en the risk of penal­ties for non-com­pli­ance, employ­ers and employ­ees in an indus­try should not need to know the indus­tri­al his­to­ry of a mod­ern award for it to be rea­son­ably understood.


Although on the face of it this deci­sion seems rel­e­vant to an inter­pre­ta­tion of the clas­si­fi­ca­tions of the Award, it does have broad­er applic­a­bil­i­ty to the exer­cise of fit­ting an employ­ee’s role into an award classification. 

It is notable that both Whee­la­han J and the Full Court empha­sised the impor­tance of mod­ern awards being acces­si­ble to those in the indus­try who use them. For that rea­son, employ­ers should think twice before adopt­ing an over­ly legal­is­tic or com­pli­cat­ed approach to fit­ting employ­ees into an award clas­si­fi­ca­tion. Although the his­to­ry of an award will be rel­e­vant in some cas­es and par­tic­u­lar­ly in the event of ambi­gu­i­ty, employ­ers should not under­es­ti­mate the impor­tance of tak­ing a broad or pur­po­sive approach to award inter­pre­ta­tion, as well as tak­ing the words used in a mod­ern award clas­si­fi­ca­tion at face value. 

This case is also a reminder to employ­ers that, when con­sid­er­ing an appro­pri­ate clas­si­fi­ca­tion for an employ­ee’s expe­ri­ence and qual­i­fi­ca­tions, con­sid­er­a­tion should be giv­en to whether the next Lev­el in the clas­si­fi­ca­tion struc­ture sets a clear ceil­ing”. That will assist in avoid­ing ques­tions about whether more senior employ­ees fall out of scope.