DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2019/17)

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 3 – Registered and Licensed Clubs Award 2010.

Background

[1] This decision deals with an outstanding issue in the Registered and Licensed Clubs Award 2010 (the Clubs Award), as part of the 4 yearly review of modern awards (the Review).

[2] The Registered and Licensed Clubs Exposure Draft (the exposure draft) was previously published on 19 April 2019 after which submissions were received from Clubs Australia Industrial (CAI) and United Voice (now the United Workers’ Union) raising a range of issues. In a decision issued on 14 October 2019, we referred the issues raised to Commissioner Bissett for a conference. 1 A conference was convened on 16 October 2019 and a Report of that conference was issued on 21 October 2019. A statement issued on 23 October 20192 confirmed that one issue remained outstanding following the conference.

[3] The exposure draft was republished on 29 January 2020, 3 as part of the Tranche 3 process. The revised exposure draft included the items resolved at the conference before Commissioner Bissett. We now turn to deal with the remaining outstanding issue.

Outstanding issue in the Casual fitness instructors rates provisions

[4] The unresolved issue concerns clause 18.4(a) – Casual fitness instructor of the exposure draft and whether the rate, currently inclusive of the 25% casual loading, should be disaggregated (see [17] of the report).

[5] Clause 18.4 of the exposure draft provides as follows:

‘18.4 Casual fitness instructor rates

(a) Minimum hourly rate—$49.15 inclusive of the 25% casual loading in clause 11.2.

(b) Minimum engagement—one hour.’ 4

[6] The corresponding clause in the Clubs Award, clause 17.6, provides as follows:

‘17.6 Casual fitness instructors

(a) Minimum rate per hour is $49.15.

(b) Minimum engagement—one hour.

NOTE: The hourly rate specified in this clause is inclusive of the 25% casual loading in clause 10.5.’ 5

[7] In the December 2019 Decision we set out the parties’ positions in relation to this issue. The UWU submitted that the rate in clause 18.4 of the exposure draft is inclusive of the 25 per cent casual loading only and does not include an amount in respect of penalty rates:

‘Clause 29.1 of the current Award provides for weekend and public holiday penalty rates for employees other than maintenance and horticultural employees and clause 29.4 provides for late and early work penalties for employees other than maintenance and horticultural employees.2 Casual fitness instructors are not excluded from these provisions and therefore are entitled to penalty rates.’

[8] The UWU further submitted that the minimum hourly rate for a casual fitness instructor should be disaggregated from the casual loading and be separately stated within the Clubs Award on the basis that this would make it easier for employees and employers to calculate penalty rates for these employees.

[9] CAI contended that the rate in clause 18.4 of the exposure draft is ‘an all inclusive rate’ and submits that in Matter No. 2010/221 Vice President Watson ‘confirmed the position that the rate encompasses all allowances.’ CAI submits that the clause should be reworded to ensure that no penalty or weekend payments of any type will apply, as follows:

‘(a) Minimum hourly rate - $47.72 inclusive of the 25% casual loading in clause 11.2. No penalty or weekend payments of any type will apply.’ (emphasis added)

[10] In the December 2019 Decision we noted 6 that contrary to CAI’s assertion, Vice President Watson did not confirm that the rate encompasses all allowances, so much is clear from the transcript of those proceedings:

‘MS MANOHAR-MURRAY: I might move on to the second variation that’s being sought, your Honour.

THE VICE PRESIDENT: Yes.

MS MANOHAR-MURRAY: That’s to insert a note at the end of sub-clause 17.6. That’s in relation to casual fitness instructors. The note would read:

The hourly rate specified in this sub-clause is inclusive of the 25 per cent casual loading specified in sub-clause 10.5.

This is because it has always been the case historically, however Fair Work Australia has advised that the 25 per cent casual loading would be on top of that rate of pay. So we would just like to have that clarified as well.

THE VICE PRESIDENT: Yes, you say it’s clearly the intention that it be an all-up figure.

MS MANOHAR-MURRAY: That’s right, your Honour.

THE VICE PRESIDENT: Encompassing all allowances, at least encompassing the casual allowance.

MS MANOHAR-MURRAY: Yes, your Honour.

THE VICE PRESIDENT: Yes.’ 7 (emphasis added)

[11] The December 2019 Decision also noted that if the rate for a casual fitness instructor is disaggregated, the minimum classification rate would be $38.18 per hour or $1450.70 per week, which is unusually high in comparison to the other minimum classification rates in the Clubs Award (in particular, as compared to a Grade 2 Leisure Attendant who receives a minimum hourly rate of $20.91 or $794.70 per week), 8 as well as the minimum classification rates in the Fitness Industry Award 2010 (Fitness Award). We concluded as follows:

‘[20] It seems to us that the disaggregation of the rate in clause 18.4(a) invites scrutiny of the disaggregated minimum classification rate for a fitness instructor. In particular, whether that rate is properly fixed. We would also observe that on the limited material presently before us we are not persuaded that the rate in clause 18.4 encompasses all penalty payments.’ 9

[12] The UWU was invited to file submissions regarding the appropriate minimum classification rate for casual fitness instructors and the CAI was invited to file submissions setting out precisely which penalty payments the clause 18.4 ‘loaded’ rate is said to encompass and detailing the relevant arbitral history. Parties were to file submissions by 4:00 pm on Friday 31 January 2020, with submissions in reply due by 4:00 pm on Friday 14 February 2020. 10

[13] The following submissions were filed in response to our directions:

•  UWU 31 January 2020

•  CAI 31 January 2020

•  UWU submission in reply 14 February 2020

[14] The December 2019 Decision also noted that the issue would be determined on the papers unless a request for an oral hearing was made. While no party has requested an oral hearing, the United Workers’ Union indicated a willingness to participate in further conferences with the other parties. 11

[15] The UWU maintains its position that the rate in clause 18.4 of the exposure draft does not absorb all other penalties, other than the casual loading. 12

[16] The UWU further submits that any reduction to the rate would not be justified because the Commission is unable to be satisfied that a change in the rate is necessary and ‘justified by work value reasons’. 13 It notes that there has been no claim to vary the rate paid to casual fitness instructors there are no cogent work value reasons to vary the rate of casual fitness instructors.14 Additionally, it notes that there is no indication that the work of a casual fitness instructor has changed since the rate was set at the time of award modernisation. Accordingly, it submits that the rate should remain as it is.15

[17] The UWU submits that there are prima facie plausible work value reasons that justify the rate paid to casual fitness instructors under the Clubs Award. The following broad assertions are advanced in support of the UWU’s position:

(i) There is ‘some complexity to the industrial relations of fitness instructors’, in that:

‘There is some complexity to the industrial relations of fitness instructors. Fitness instructors appear to be archetypal ‘freelancers’ who will possess special skills and complex competitive considerations like ‘celebrity’ may affect the paid rate. Work in a gym may also bring with it opportunities for an instructor to negotiate over award payments directly with persons for services such as personal training. There is arguably some disutility associated with a fitness instructor doing the same work in a club that isn’t part of the ‘fitness industry’.’ 16

(ii) The rate for casual fitness instructors is intended to apply to an employee who will be engaged for a minimum of 1 hour to perform ‘broadly aerobic exercise’. The work is said to be physically demanding:

‘We understand most fitness classes conducted by commercial gyms now run for approximately 30 to 45 minutes. The instructor participates in the class with the participants by doing the exercises vigorously so as to encourage the class to attain ‘fitness’. The work of a fitness instructor is physically demanding as he or she leads the class by performing the exercise expertly. It is pellucid that it is not a job that can be done ‘back to back’ for 8 hours a day, 5 days a week. The work is arduous and can only be performed in a few hourly increments a day with breaks.

The comparison made in the Decision at [13] of the casual fitness instructor rate and a weekly base rate of $1,450.70 is unhelpful. A $1,450.70 weekly rate of pay for this classification is not a possibility under the Award. Casual fitness instructors can only be employed casually. Further were a club to engage a casual fitness instructor for full time hours doing work within the classification, this would require the employees to lead about 35 classes a week requiring the employee to perform over 6 classes per day. This would be an arguably impossible job to perform, requiring extraordinary level of athleticism and be potentially harmful to a person’s health and unsustainable.’ 17

(iii) Some of the indicative tasks of a casual fitness instructor ‘require a high level of skill’:

‘While the ‘skills’ required of a casual fitness instructor are loosely defined some of the indicative task require a high level of skill. Skill here should be informed by the choice provided to employers by the casual nature of the work. A club can rationally be expected to seek fitness instructors for the provision of ad hoc classes for members who have some facility. A casual fitness instructor will be engaged because of the special skills the person has in leading fitness classes.’ 18

(iv) Rates within a modern award should be aligned to an amount that would actually allow and employer to engage persons to perform the work:

‘Rates within a modern award should be aligned to an amount that would actually allow an employer to engage persons to perform the work. If a club is in effect engaging independent contractors and the rate in the award aligns with the industry standard, the rate is appropriate. If the rate paid for casual fitness instructors is so low that it would be practically impossible to provide ad hoc fitness classes for members, there is nothing fair or relevant about the rate.’ 19

(v) Fitness classes in a club may be infrequent creating disutility which is reflect in the rate of pay , :

‘Further, one can assume that a casual fitness instructor may be engaged by a club to provide some classes to its members as an ‘add-on’ amenity to members. The provision of fitness classes may not be part of the club’s core activities and such classes may be infrequent. In a not inconceivable scenario, there may be 3 or 4 classes of one hours’ duration a week. The instructor would have to travel at his or her own expense to the club, set up before the class and shower and change afterwards. The employee may also have to supply, maintain and use their own equipment to conduct the class. There are no allowances within the Award that would provide any compensation for this. Accordingly taking into account this plausible pattern of work, the rate is not particularly high or necessarily ‘absurd.’

…

It is plausible to assume that the engagement of fitness instructors for a bare 1-hour is more common under the Award than the Fitness Award. The work of a casual fitness instructor under the Award likely carries with it a high degree of precariousness.’ 20

[18] As mentioned earlier, if the rate for a casual fitness instructor in the Clubs Award is disaggregate then the minimum classification rate would be $38.18 per hour. In essence the UWU contends that a rate of $38.18 per hour is appropriate for the work in question and supported by what it describes as ‘plausible work value reasons’. We find the UWU’s submissions unpersuasive.

[19] The submission put is little more than a series of broad assertions, unsupported by any evidence. Further, the UWU submission fails to adequately grapple with two matters which tell against its position.

[20] The first matter is how the casual fitness instructor classification and wage rate aligns with comparable classifications in the Fitness Award. The UWU submits that such a comparison is ‘unhelpful’. We disagree. While such a comparison may be ‘unhelpful’ to the UWU’s case it is plainly relevant to our consideration of the issue before us, given that the Fitness Award is the relevant industry award.

[21] The minimum period of engagement of a casual fitness instructor under the Clubs Award (1 hour) is not relevantly distinguishable from the position under the Fitness Award.

[22] The Fitness Award provides that levels 2, 3, 3A, 4 or 4A instructors are engaged for a minimum of 1 hour save that on a public holiday a 4 hour minimum engagement applies to all employees. 21 Further, the qualifications required of a Level 3A employee under the Fitness Award exceed those required of casual fitness instructors under the Clubs Award. An employee at level 3A performs the duties of a level 3 and:

(a) holds a Fitness Industry AWF Certificate III qualification relevant to the classification in which they are employed or equivalent; and

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

[23] The UWU submits that a comparison with the Fitness Award is not appropriate because the Fitness Award does not apply to fitness classes conducted on the premises of a club. 22 It is asserted that fitness classes in a club context ‘may be infrequent’ and that it is ‘not inconceivable’ that there may only be 3 or 4 classes per week of one hours duration. There is simply no evidentiary basis for these assertions.

[24] The second matter is the context, in particular how the fitness instructor classification ‘fits’ into the Clubs Award. It is apparent that there is a similarity between the classification descriptions of a casual fitness instructor and a leisure attendant grade 2; and the disparity in hourly rates.

Leisure Attendant Grade 2	(Casual) fitness instructor
Leisure attendant grade 2 means a person who has the appropriate level of training and takes classes and/or directs leisure activities such as sporting areas, health clubs and swimming pools. This classification includes an assistant bingo caller.	(Casual) fitness instructor means an employee engaged in instructing people in either aqua aerobics, aerobics, pump, step aerobics, boxing circuits, circuits, walking, cardiac class, yoga or similar disciplines. An employee engaged as a fitness instructor will be engaged for a minimum shift of one hour.
$21.54 per hour	$49.15 per hour or $38.18 + 25% casual loading

[25] We now turn to CAI’s submission.

[26] CAI maintains that the loaded rate in clause 18.4 of the exposure draft is an all-inclusive rate and that no weekend, public or late/early shift penalty rates apply. 23 In its submission, CAI provides some background to the history and subject matter of the Clubs Award noting that prior to the making of the modern award, a number of Pre-reform Awards and Notional Agreement Preserving State Awards (NAPSA) applied to the Clubs Industry on a state-by-state basis. Further, apart from the club Employees (State) Award 2004 (the NSW NAPSA), no other Pre-reform Award or NAPSA contained a casual fitness instructor classification.24

[27] The CAI extracted the relevant classification in the NSW NAPSA at clause 8.9, which reads as follows:

‘8.9 Fitness Instructor

8.9.1 Definition:

(a) This Clause does not relate to fitness instructors who are full-time employees.

(b) Fitness Instructor: is an employee engaged in instructing people in either aquarobics, aerobics, pump, step aerobics, Boxing circuits, circuits, walking, cardiac class, yoga, or similar discipline.

8.9.2 Hours:

(a) An employee engaged as a fitness instructor shall be engaged for a minimum shift of 1 hour.

(b) The spread of hours for fitness instructors shall be 15 from the commencement of their first shift to the cessation of the last shift within a day.

8.9.3 Rate of Pay

The minimum all-up rate of pay shall be as set out in Table 1 Rates of Pay (iv), (v), &(vi). No penalty or weekend payments of any type will apply. The actual hourly rate shall be negotiable on a club by club basis.’

[28] The CAI notes that as part of the Award Modernisation process, 25 clause 8.9 of the NSW NAPSA was replicated in its entirety in Schedule A of the Parties’ draft award of the Clubs Award, filed with the then Australian Industrial Relations Commission (AIRC) on 6 March 2009.26 The draft modern award was drafted with input from, and the agreement of, CAI, the Liquor, Hospitality and Miscellaneous Workers Union (LHMU (a predecessor organisation to the UWU)) and the Club Managers’ Association of Australia. An updated Parties’ draft award was filed with AIRC on 20 March 2009. The casual fitness instructor classification at Schedule A.6(d) of the updated draft read as follows:27

‘A.6(d) (Casual) fitness instructor means an employee engaged in instructing people in either aqua aerobics, aerobics, pump, step aerobics, boxing circuits, circuits, walking, cardiac class, yoga or similar disciplines.

An employee engaged as a fitness instructor shall be engaged for a minimum shift of 1 hour.

The minimum all up rate shall be as set out in Clause 20.1; no penalty or weekend payments of any type apply.’

[29] The CAI notes that the relevant rate in clause 20.1 of the updated Parties’ draft award was $37.13, which was the NSW NAPSA rate (clause 8.9.3) plus the $0.57 wage increase that was handed down by the Australian Fair Pay Commission in July 2008. The first exposure draft of the Clubs Award was issued by the AIRC on 22 May 2009, with the relevant provisions of the first exposure draft were at clause 17.8 and Schedule A as follows:  28

‘17.8 Casual Fitness Instructors

(a) Minimum rate per hour is $37.13.

(b) Minimum engagement – one hour.

A.7.4 (Casual) fitness instructor means an employee engaged in instructing people in either aqua aerobics, aerobics, pump, step aerobics, boxing circuits, circuits, walking, cardiac class, yoga or similar disciplines. An employee engaged as a fitness instructor will be engaged for a minimum shift of one hour.’

[30] CAI submits that the sentence ‘the minimum all up rate shall be as set out in Clause 17.8; no penalty or weekend payments of any type apply’ was omitted in the exposure draft, for reasons unknown or simply as a drafting error. 29 None of the submissions filed by the interested parties between the release of the updated parties’ draft award addressed the issue of casual fitness instructors at all. 30

[31] In July 2010, the Clubs Award was amended on application by the CAI with a note inserted into clause 17.6—Casual fitness instructors as follows:

‘NOTE: The hourly rate specified in this clause is inclusive of the 25% casual loading in clause 10.5’

[32] The CAI submits that, despite the omission of the words ‘no penalty or weekend payments of any type apply’, it is clear that the casual fitness instructor clause of the Clubs Award was intended to essentially replicate the casual fitness instructor provisions from the NSW NAPSA, and were intended to include all penalty and weekend rates as part of an all-inclusive rate. 31 Further, CAI submits that all of the parties to the Parties’ draft award, including the LHMU), agreed to this in 2009.

[33] The CAI referred to award interpretation principles, as outlined in Re City of Wanneroo v Michael Lindsay Holmes 32, that ‘ambiguity in an Award may be resolved by a consideration, inter alia of the history and subject matter of the award’ and that one must ‘endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.’33

[34] Applying these principles to the present matter, CAI proposes that the issue be resolved consistent with the history of the Clubs Award and the general intentions of the relevant parties involved in its drafting. Therefore, it proposes that an addition to the Note at clause 17.6 of the Clubs Award is made as follows: 34

‘NOTE: The hourly rate specified in this clause is inclusive of the 25% casual loading in clause 10.5 and the penalty rates in clause 24.’

[35] We note that the CAI submission references to clause 24—Meal breaks but the correct reference is to clause 29—Penalty rates.

[36] Clause 29 provides as follows:

Penalty rates

29.1 An employee other than a maintenance and horticultural employee performing work on the following days will be paid the following percentage of the minimum wage rate in clause 17 – Minimum wages for the relevant classification:

	Monday to Friday	Saturday	Sunday	Public holiday
	%	%	%	%
Full-time and part-time	100	150	175	250
Casual (inclusive of the 25% casual loading)	125	150	175	250

29.2 A maintenance and horticultural employee performing work on the following days will be paid the following percentage of the minimum wage rate in clause 17 – Minimum wages for the relevant classification:

Monday to Friday and Saturday before 12 noon	Saturday after 12 noon	Sunday	Public holiday
100%	150% for the first 2 hours then 200%	200%	250%

29.3 Public holidays

(a) An employee other than a casual working on a public holiday will be paid for a minimum of four hours’ work.

(b) Employees other than maintenance or horticultural employees who work on a prescribed holiday may, by agreement, perform such work at ordinary rates plus 50% additional loading, instead of the penalty rate prescribed in clause 29.1, provided that equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which such holiday falls. Provided that such holiday may be allowed to the employee within 28 days of such holiday falling due.

(c) An employee other than a casual working on Christmas Day when it falls on a weekend, and is not prescribed as a public holiday under the NES, will be paid an additional loading of 50% of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.

29.4 Late and early work penalty

Employees other than maintenance or horticultural employees will be entitled to the following additional penalty for work performed at the following times:

(a) Monday to Friday, 7.00 pm to midnight: 10% of the standard hourly rate per hour or any part of an hour for such time worked within the said hours; and

(b) Monday to Friday, midnight to 7.00 am: 15% of the standard hourly rate per hour or any part of an hour for such time worked within the said hours.

29.5 Penalty rates not cumulative

Except as provided in clause 24 – Meal breaks, where time worked is required to be paid for at more than the ordinary rate such time will be not subject to more than one penalty, but will be subjected to that penalty which is to the employee’s greatest advantage.

[37] CAI submits that the casual fitness instructor rate is far in excess of all the other minimum classification rates in the Clubs Award and in the Fitness Award, including that applicable to club managers. 35 Further, to interpret the Clubs Award in a way that applies the penalty rates in clause 29 to the ‘already inflated rate’ of the casual fitness instructor would not accord with the modern awards objective and would result in rates of pay in excess of $100 per hour on Sundays and public holidays. The CAI submits that this would be excessive, absurd and inherently unlikely. 36

[38] In its reply submission the UWU submits that to categorise the absence of a clear statement that the rate of casual fitness instructors in the Clubs Award includes all penalties as a ‘mistake’, is not a fair-minded interpretation of the text and the award history:

In effect, Clubs Australia Industrial (CAI) offers only that the Award’s treatment of casual fitness instructors is not a carbon copy of a similar provision in a predecessor instrument, the Clubs Employees (State) Award 2004 (‘NSW NAPSA’), for the proposition that the rate is erroneous. Namely that there was a translation error during award modernisation. 37

[39] The UWU also submits that the time to alert the Commission of any ‘translations errors’ in award modernisation has past:

‘A general riposte to this argument is that it is too late. The time to alert the Commission to translations errors in award modernisation is not now. In 2010, the CAI made a timely application to resolve errors which directly touched on this matter. The CAI did not identify the error it now says is apparent. 38 No claim has been made about the matter in this review and a new iteration of the Award is about to be made.’39

[40] The UWU contends that a review of the award history ‘clearly provides support for the text of the Clubs Award concerning casual fitness instructors being accurate’. 40

‘The text of the Award is clear. The rate encompasses the base rate and the 25% loading and not all penalties. Casual fitness instructors are not intended to be excluded from the Award’s penalty rate clause. Any ambiguity, we say there is none,15 is clearly resolved by a review of the award history. The variation made very soon after the Award was made touched directly on possibility of an error concerning the components of the rate, the rate was scrutinised and the CAI clearly proceeded on the basis that the rate comprises the base rate and the casual loading only.’ 41

[41] As to the relevant award history the UWU state: 42

On 20 March 2009, the updated parties’ draft of the award contained words indicating that the rate for casual fitness instructors was inclusive of penalties: ‘no penalty or weekend payments of any type apply.’ This provision replicated an identical provision in the NSW NAPSA. This document was as the name implied the parties draft and not the draft of the tribunal.

On 22 May 2009, the first exposure draft of the Award was published by the then Australian Industrial Relations Commission. This iteration of the proposed award is the Commission’s first draft and contains clauses concerning casual fitness instructors which are identical to the text of the Award.

There is a period of 2 months between the parties draft and the first exposure draft where various submissions where made by various interested industrial parties. None appear to directly address the rate of pay of casual fitness instructors. After 22 May 2009, there were further submissions made by interested parties on the exposure draft. None of these submissions directly address the rate of pay for casual fitness instructors but there was significant debate concerning the coverage of the instrument and the application of its penalty rates clause. Absence of debate may, among other things, mean that the parties accepted the unremarked text.

The Award is a modern award. The Award’s coverage is broadly that of all work on the premises of a club whereas the NSW NAPSA was an instrument with respondents and covered persons employed by the club. That the penalty rate clause of the Award should apply to all persons covered by the Award was a contentious issue and the settlement of the current coverage clause deliberate. 43The broader coverage of the Award and the general application the penalty rate clause was to avoid ‘differential rates of pay and conditions of employment being paid for the same work when that work has been performed by persons who are not employees of the licensee.’44

On 4 September 2009, the Award was made. 45 The Full Bench in its decision notes at the outset: ‘There are a significant number of changes resulting from submissions and proposals made in relation to the exposure draft.’46 There was a dispute concerning prescribed wage rates for casual employees at sports grounds in Victoria.47 This dispute was resolved this dispute on the basis that ‘the general classification structure and wage rates, and related additional entitlements, in the modern award provide an appropriate safety net’.48

On 11 October 2010, the CAI made a successful application under section 160 of the Fair Work Act 2009 (‘the Act’) to ‘remove ambiguity or uncertainty or errors’ in the recently made award concerning 3 matters. This was in effect a timely omnibus application made by the CAI to correct award modernisation ‘errors’. The terms and conditions of casual fitness instructors were scrutinised. By consent 3 variations were made and according to VP Watson were ‘in the nature of ambiguities and you (the CAI) say reflected the intention in any event.’ 49 As the Decision notes [10] one of these variations was to insert the current note underneath clause 17.6 indicating that the rate for casual fitness instructors ‘is inclusive of the 25% casual loading in clause 10.5.’ The purpose of the variation was to remove an ambiguity about the rate paid to casual fitness instructors namely whether their minimum rate per hour was the base rate of pay and that ‘the 25 per cent casual loading would be on top of that rate of pay.’50 The variation was made on the basis that the rate ‘at least’ encompassed the casual loading.51 The variation was made by consent. There was no mention or statement that the rate included penalties. The Award was made on the basis that its penalty rate clause generally applied to an ‘employee other than a maintenance and horticultural employee’.52 There was explicit general debate and consideration of this when the Award was made. There is a clear objective intention53 that other than the limited category of employees excluded, the penalty rate clause of the Award applies to all employees.

[42] Having considered the submissions made we make the following observations on the basis of the material presently before us:

1. The minimum classification rate component of the casual fitness instructor rate under the Clubs Award ($38.18 per hour) does not properly reflect the ‘work value’ of the role, having regard to:

•  the disparity in hourly rates between the classifications of casual fitness instructor and leisure attendant grade 2, given the similarity in the relevant classification descriptions; and

•  the rates for the comparable classifications in the Fitness Award.

2. The relevant award history supports CAI’s contention that intention was that the casual fitness instructor rate be inclusive of the 25% casual loading in clause 10.5 and the penalty rates in clause 29.

[43] But these observations are not determinative of the matter before us and nor do they lead inexorably to the adoption of CAI’s proposed variation. It is important to recall that this issue arises in the context of the 4 yearly review of modern awards.

[44] Section 156 of the Fair Work Act 2009 (Cth) (the Act) deals with the conduct of the Review and s.156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 54 The discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, is expressed in general, unqualified, terms.

[45] In 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors) Decision 55 the Full Bench summarised the general propositions applying to the Commission’s task in the Review, relevantly noting:

‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.’ 56

[46] We propose to review the rate for a casual fitness instructor in the Clubs Award in order to examine the utilisation of fitness instructors by entities covered by the Clubs Award, the nature of their engagement and whether the current award rate is ‘fair.’ A conference will be convened before Deputy President Clancy shortly to discuss the conduct of such a review. A separate listing notice will be issued shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717339>

 1   [2019] FWCFB 6935 at [203]

 2   [2019] FWC 7328

 3   [2020] FWCFB 421 at [6]

 4   Draft award variation determination - Registered and Licensed Clubs Award

 5   MA000058

 6   [2019] FWCFB 8585 at [10]

 7   Transcript 11 October 2010 at PN54 – PN63

 8   These rates were increased in the AWR in 2019. The current minimum hourly rate for a Grade 2 leisure attendant is $21.54 and the minimum weekly rate is $818.50

 9   [2019] FWCFB 8585 at [20]

 10   [2019] FWCFB 8585 at [22]

 11   United Workers' Union Submission, 31 January 2020

 12   United Workers' Union submission, 31 January 2020

 13   United Workers' Union submission, 31 January 2020 at para. 33

 14   United Workers' Union submission, 31 January 2020 at paras. 3 and 18

 15   United Workers' Union submission, 31 January 2020 at para. 29

 16   United Workers' Union submission, 31 January 2020 at para. 16

 17   United Workers' Union submission, 31 January 2020 at paras. 20 - 21

 18   United Workers' Union submission, 31 January 2020 at para. 23

 19   United Workers' Union submission, 31 January 2020 at para. 24

 20   United Workers' Union submission, 31 January 2020 at paras. 25, 27

 21   See clauses 13.4, 13.5 and 26.3(c) of the Fitness Award

 22   United Workers' Union submission, 31 January 2020 at para. 31

 23   CAI submission, 31 January 2020 at para. 3

 24   CAI submission, 31 January 2020 at para. 4

 25   AM2008/40

 26   CAI submission, 31 January 2020 at para. 8

 27   CAI submission, 31 January 2020 at para. 10

 28   CAI submission, 31 January 2020 at para. 12

 29   CAI submission, 31 January 2020 at para. 13

 30   CAI submission, 31 January 2020 at para. 13

 31   CAI submission, 31 January 2020 at para. 15

 32   (1989) FCA 369

 33   CAI submission, 31 January 2020 at para. 16

 34   CAI submission, 31 January 2020 at para. 17

 35   CAI submission, 31 January 2020 at para. 19

 36   CAI submission, 31 January 2020 at para. 20

 37   Submission of CAI, 31 January 2020, at [15]: ‘… the casual fitness instructor clauses of the Award were intended to essentially replicate the casual fitness instructor provisions of the NSW NAPSA’.

 38   Determination – Registered and Licensed Clubs Award 2010, 11 October 2010, Vice President Watson, Fair Work Australia

 39   United Workers' Union submission, 18 February 2020 at para. 4

 40   Ibid at [5]

 41   Ibid at [12]

 42   United Workers' Union submission, 18 February 2020 at paras. 6 - 11

 43   Statement - Award Modernisation [2009] AIRCFB 450 at [100]; and Decision - Award Modernisation [2009] AIRCFB 826 at [119]

 44   Submission in reply of the Liquor, Hospitality and Miscellaneous Union, AM2008/40-Licensed and Registered Clubs, 19 June 2009, [4.1]

 45   Award Modernisation [2009] AIRCFB 826

 46   Ibid at [117]

 47   Ibid at [125]

 48   Ibid at [127]

 49   Transcript, 11 October 2010, PN95

 50   Ibid at PN58

 51   Ibid at PN59

 52   Clause 29

 53   The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions.’ See: Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471 at 483 [34] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).

 54   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38]

 55   [2017] FWCFB 1001

 56   Ibid at [269]