TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 63297-1

VICE PRESIDENT WATSON

AM2011/44

s.158 - Application to vary or revoke a modern award

Application by Australian Swimming Coaches and Teachers Association, and Swim Australia
(AM2011/44)
Fitness Industry Award 2010

(ODN AM2008/78)
[MA000094 Print PR991059]]




Sydney

10.03AM, WEDNESDAY, 21 SEPTEMBER 2011

THE FOLLOWING PROCEEDINGS WERE CONUDCTED VIA VIDEO LINK AND RECORDED IN SYDNEY

PN1

THE VICE PRESIDENT: Could I have the appearances please, commencing in Brisbane.

PN2

MR M. TAYLOR: I appear on behalf of the applicant organisations, and I would seek to amend my appearance this morning to include Westside Swimming Pty Ltd, which is a member organisation of Swim Australia and an employer of employees under the Fitness Industry Award 2010.

PN3

THE VICE PRESIDENT: Thank you, Mr Taylor. No need to stand on the video. We can see you probably better if you remain seated. And in Sydney?

PN4

MR D. WILKINSON: I appear on behalf of Fitness Australia, thank you.

PN5

THE VICE PRESIDENT: Thank you, Mr Wilkinson.

PN6

MR N. SWANCOTT: I appear for United Voice.

PN7

THE VICE PRESIDENT: Thank you, Mr Swancott. Yes Mr Taylor it’s your application.

PN8

MR TAYLOR: Yes, your Honour. If I could preface my submissions this morning, by saying in the last 15 minutes or so I have been handed a copy of the submission on behalf of Royal Life Saving Society of Australia, and other members of the Royal Life Saving Society. I had the opportunity of going through that document. I must say I checked the website as late as quarter past 7 this morning, and that document hadn’t appeared. So I am still at a disadvantage, but in relation to matters before you this morning I don’t think it’s fatal to my position. But I just note that in mention. I am also aware of late submissions handed by Mr Swancott’s organisation, and Royal Life Saving Australia. And I will address those in due course if I may.

PN9

THE VICE PRESIDENT: Before you do, it’s not usual that applications to vary awards be dealt with by way of correspondence. But do you have any objection to the submissions filed on behalf of parties that do not appear in the proceedings being marked as an exhibit and taken into account?

PN10

MR TAYLOR: Your Honour, I think given the nature of the application before you, my clients would have no objections to these submissions being considered in the context of these proceedings today.

PN11

THE VICE PRESIDENT: Yes, thank you. Well, in that case I might mark the submission dated 20 September by Royal Life Saving Society of Australia, and Royal Life Saving Society New South Wales branch and Queensland branch, exhibit R1 in these proceedings.

EXHIBIT #R1 SUBMISSIONS OF ROYAL LIFE SAVING SOCIETY OF AUSTRALIA, AND ROYAL LIFE SAVING SOCIETY OF AUSTRALIA NSW BRANCH, AND ROYAL LIFE SAVING SOCIETY OF AUSTRALIA QLD BRANCH DATED 20/09/2011

PN12

THE VICE PRESIDENT: I will mark your submissions, Mr Taylor.

EXHIBIT #T1 SUBMISSIONS OF MR TAYLOR ON BEHALF OF THE APPLICANT

PN13

THE VICE PRESIDENT: They are the submissions, undated, but a six page submission filed and headed Submissions on Behalf of the Applicants.

PN14

MR TAYLOR: Thank you, your Honour.

PN15

THE VICE PRESIDENT: Yes. Please proceed, Mr Taylor.

PN16

MR TAYLOR: Your Honour, the applicant organisations that I appear for today were active players in the process of award modernisation in the fitness industry. However, as a consequence of their focus, which at the time was predominantly on terms and conditions in relation to swim teachers, we now believe others oversighted some particularly important individuals within the workforce to be covered by the Fitness Industry Award. That is pool lifeguards, whether they be employed in free standing swim schools, or in associated aquatic facilities.

PN17

The application comes by way of a dispute notification that involved one of the organisations I appear for today, which was before Commissioner Simpson in July this year in relation to the issue of appropriate rates of pay and conditions for lifeguards involved with swim school operations. That matter remained substantially unresolved on the understanding that Swim Australia and the association of professional coaches would seek to involve a process of industry consultation with interested parties to gain support for an amendment to the Fitness Industry Award to cover, or make specific reference to terms and conditions, in relation to the roles of lifeguard and senior lifeguard.

PN18

That process of consolation, which I have detailed in exhibit T1, took place between July and August this year substantially. But in recent times there have been some discussions between myself representing the applicant organisations, and Mr Swancott’s organisation, and the Australian Workers’ Union, as concerned employee representative organisations in the fitness industry generally. The dispute involving Westside Swimming related to clarification of appropriate wages, but also conditions of employment for lifeguards. And as a consequence of that dispute notification, we have bought the application to vary the Fitness Industry Award before yourself this morning.

PN19

In exhibit T1, I have sought to put in place, as I understand it, the award coverage situation prior to the advent of the Fitness Industry Award 2010. And I just draw your attention to my part of exhibit T1 at paragraph 2.1. I indicate that there is a range of network awards covering the field, which now fall within the scope of the Fitness Industry Award 2010. Some of the state awards and federal awards at the time made specific reference to lifeguarding, or pool attendance did not. Those that did indicate reference to lifeguards, I submit, the lifeguard awards state Queensland 2003, coverage of which went to employees engaged in or in connection with lifeguarding or lifesaving duties within the state of Queensland. This award shall apply to all such work contained in or in connection with the following. And the clause went on to detail the coverage.

PN20

At paragraph (c), the coverage was indicated to be still water, recreation, or aquatic facilities. And that was a reference to clause 1.41 of the award. A second award which covered lifeguards prior to 1 January last year, was the Fitness Recreation Leisure Facilities Local Government Contractors Award 2004, reference AP838003CRV. This was a federal award and had the role of a rate of pay for lifeguard pegged to that of a swim teacher. A third award, which was the State Health Fitness and Indoor Sport Centres Award, which was New South Wales Award, reference AM120240, had an incidence and duration clause, that is clause 34. That applied to employees:

PN21

Employed by any organisation, whether non for profit or not, whose operation is substantially one or more of the following.

PN22

And a list of operations then followed, including gymnasiums, aquatic centres, or like health and fitness centres. The award classification structure contained in clause 3 indicated that at level 3A an employee has completed structured training, which may include formal lifesaving, rescue and resuscitation training, recognised by industries as relevant, appropriate to perform within the scope of this level. Pool attendant (lifeguard) involved in overseeing pool activities under supervision by a more qualified employee, and it went on to say at level 5:

PN23

An employee at this level is responsible for supervision, training, coordination, rostering of employees within their respective work area, to ensure the delivery of service. An employee at this level performs the following range of tasks or duties, including lifeguarding, holding relevant qualifications at trade or equivalent level.

PN24

And finally, your Honour, there was two other awards which were silent on lifeguards, but for the completeness of my submission I’d contended that operation in the sector at the time, that is prior to January 2009. They were the Health Recreation and Fitness Industry Award, which was the South Australian Award AM150063, the Health Fitness Centres Swim Schools and Indoor Sports Award Queensland 2005. Your Honour, the situation since 2009, 1 January 2009, sees a group of modern awards that relate to various aspects of community activities in or around water based facilities or recreations. The two particular awards under consideration this morning are the Fitness Industry Award MA000094, and the Amusement Events Recreation Award 2010 MA00080.

PN25

The Amusements Award relates to, and I quote clause 4.1:

PN26

This industry covers employers throughout Australia in amusements, events, and recreation industry and their employees in the classifications set out in this award to the exclusion of any other multiple award.

PN27

4.2 of the award says:

PN28

Definition of, (a) amusements events and recreation industry means the operation of (ii) leisure and recreation facilities and centres, (ii) sporting exhibition convention and amusement complexes.

PN29

THE VICE PRESIDENT: Mr Taylor, when I originally saw your application I thought it related to the classifications in the Fitness Industry Award. But when I’m reading your submissions, and the modern award coverage that you are now taking me to, it appears that the issue is which of the appropriate modern award should apply, which appears to be a separate issue.

PN30

MR TAYLOR: The question that my clients are seeking to resolve, is there a modern award that without any, in addition, can be applied to their operations. And if so, what are the appropriate rates of pay and conditions for lifeguards and senior lifeguards. The first part of the question is how the modern award structure has been created and what it relates to currently. We have two awards in reasonable proximity to each other, but with some overlap we contend. We would say that the wording in both awards, when you read them concurrently, would exclude the operation of rates of pay and conditions being drawn across from the Amusements Award into the fitness industry coverage, because of the exclusion provisions that appear in the Fitness Industry Award.

PN31

THE VICE PRESIDENT: Yes. Well, isn’t that the case that because of the exclusion provisions in the Fitness Award, that the Fitness Award does not apply to recreation facilities, leisure centres, and sporting and amusement complexes?

PN32

MR TAYLOR: I would agree with that and my clients agree with that.

PN33

THE VICE PRESIDENT: So how can a variation to the Fitness Industry Awards address the situation, when the Fitness Award doesn’t apply to what appears to be most, if not all, of your clients?

PN34

MR TAYLOR: For the simple reason that the Fitness Industry Award is silent in relation to the rates of pay and conditions of lifeguards, we contend.

PN35

THE VICE PRESIDENT: Isn’t the effect of the provisions I have just drawn your attention to, that the Fitness Award doesn’t apply?

PN36

MR TAYLOR: The Fitness Award does apply to the bulk of the employees of my clients. When I say bulk, with the exception of lifeguards, we contend.

PN37

THE VICE PRESIDENT: But you have surveyed a number of people, and nine operate as part of public baths. And wouldn’t a public bath be a recreation facility?

PN38

MR TAYLOR: It could be, yes.

PN39

THE VICE PRESIDENT: And a large multi-purpose complex, wouldn’t that be a leisure centre, or sporting complex?

PN40

MR TAYLOR: Yes it could.

PN41

THE VICE PRESIDENT: And what else is there that would not fall within the Amusement Award?

PN42

MR TAYLOR: We would contend it would be a fitness club that was offering swim and aquatic lessons concurrently through the one particular centre.

PN43

THE VICE PRESIDENT: But wouldn’t that be a recreation facility, or a leisure centre?

PN44

MR TAYLOR: Well, because those terms are so broad, it’s not necessarily the case that in general usage they would be seen as a recreation centre.

PN45

THE VICE PRESIDENT: A sporting complex?

PN46

MR TAYLOR: Sorry?

PN47

THE VICE PRESIDENT: Sporting complex. Swim club, why isn’t that a sporting complex?

PN48

MR TAYLOR: Well, swim club is aimed at a competition in the sport. Whereas a swim school is about imparting safe water practices, particularly in relation to how to swim, on students. And a lot of the organisations that are members of both the applicants do have a cross over function. But they don’t see themselves, and quite reasonably, their major and substantial focus is on health and fitness, not on recreation or on amusement.

PN49

THE VICE PRESIDENT: So the industry of the employer may not be the amusement, events and recreation industry as defined?

PN50

MR TAYLOR: That's correct.

PN51

THE VICE PRESIDENT: But some of them clearly are. Well, a survey that you indicated, 10 respondents relied on the provisions of the Fitness Industry Award, and a further four did so in conjunction with individual flexibility agreements.

PN52

MR TAYLOR: Yes.

PN53

THE VICE PRESIDENT: Does that mean that the remainder apply to the Amusement Award?

PN54

MR TAYLOR: No. that would be read that they would apply to enterprise agreements.

PN55

MR TAYLOR: Your Honour, just to clarify that. They weren’t asked specifically which award that they used in the alternative to the Fitness Industry Award.

PN56

THE VICE PRESIDENT: Or which underpinning award applies underneath their enterprise agreements. It may be that a public bath is said that they apply to the Fitness Industry Award, but they would apparently be in error in saying so.

PN57

MR TAYLOR: That could be the case as the situation is. And that’s the concerns that we have about the ambiguity and uncertainty about the current wording within the Fitness Industry Award.

PN58

THE VICE PRESIDENT: But is this a problem of the wording of the Fitness Industry Award, or is it a problem arising from the predominant application of the Amusement Award, which where an operation might fall within both, then the Amusement Award applies.

PN59

MR TAYLOR: That’s the problem, the cross over. A swim school which is one part of the business, the second part being a gymnasium, and the third part possibly providing child care facilities, does that fall within the ambit of the Amusement Industry Award? And I suggest to you none of the substantial elements of that do not.

PN60

THE VICE PRESIDENT: But if the employer operates a leisure centre and employs a lifeguard?

PN61

MR TAYLOR: Clearly they would fall under the Amusement Award. There is no contention about that.

PN62

THE VICE PRESIDENT: And are you seeking to alter that situation in that example?

PN63

MR TAYLOR: No. Because that would be one example where the Fitness Industry Award would not apply. A second example of it, and I was about to come to the point that there is actually a third award in play now as a consequence of the dialogue that has happened in recent times with the AWU and United Voice, which is a local government award. The local government award, if I can just take you to that, that actually has a reference to the type of functions or facilities that we have been discussing thing morning. The Local Government Award 2010 has a definition of a recreation centre, which means a recreation centre, leisure centre, swimming pool, aquatic centre, or sports centre, or any other municipal centre that provides physical recreation, and/or cultural, historical activities, or such other similar activities provided in the public interest.

PN64

The operation of this award, However, is restricted to businesses which are fully owned and controlled by the local government organisation. So we can have in front of you, by way of example, my local swim centre at Maroochydore. That is the real estate and the facilities are actually owned by the Sunshine Coast Regional Council. But it is actually operated by a member of Swim Australia, by the buying employer applies an enterprise agreement. But in the absence of that enterprise agreement, I would suggest that the Fitness Industry Award would apply to that individual employer, even though the real estate and the physical resources that they used are owned by the local government.

PN65

Because the local government has no control or ownership of the business that actually is operating on the real estate. They have leased it to the operator of the Maroochydore swim centre.

PN66

THE VICE PRESIDENT: Why do you say in that example that the Fitness Award applies, rather than the Amusement Industry Award?

PN67

MR TAYLOR: Because the operator, their functions fall squarely within the definition of the Fitness Industry Award.

PN68

THE VICE PRESIDENT: They also fall squarely within the Amusement Industry Award, don’t they? It’s it a recreation centre, or leisure centre?

PN69

MR TAYLOR: No. Out the front it’s got aquatic centre.

PN70

THE VICE PRESIDENT: Well, isn’t that the sporting complex? Isn’t that a leisure centre? Isn’t it a recreation facility?

PN71

MR TAYLOR: It from time to time is the venue for sports competitions. But the major and substantial element of the operation is as a swim school and/or associated fitness facility. Yes people pay admission to go and swim as a public facility, so this is a shady grey situation, your Honour. Where the role of the employees predominantly are those covered by the Fitness Industry Award, with the exception of lifeguards which are covered by the Recreation and Events Award. All the other employees fall squarely within the definitions contained in the Fitness Industry Award, and that’s the functions they deliver.

PN72

THE VICE PRESIDENT: That’s the point. That seems to be highly questionable, I might say. If an aquatic centre falls within the description of a recreation facility, then wouldn’t it be true that the Amusement Award applies?

PN73

MR TAYLOR: It could apply to some employees, but not to the employer.

PN74

THE VICE PRESIDENT: Well, if it applied to the employees who are covered by it, fall within the classifications of that award. But if that is the nature of the facility, it is a recreation facility, an aquatic centre is a recreation facility, then the Amusement Award applies to employees within the classifications of the Amusement Award.

PN75

MR TAYLOR: I concede to that line of thought. Provided that if you look at the Fitness Industry Award and the AWU’s view of it as expressed to me, is that they see this is an occupational award. The Amusement Industry Award couldn’t apply to swim teachers and swim coaches and the like, because the Amusement Industry Award is silent on all those callings and roles. Whereas the Fitness Industry Award specifically has conditions in it in relation to the delivery of swimming lessons by way of explanation. The Fitness Industry Award on the initiative of Swim Australia and the other applicant organisation has a one hour minimum engagement for casuals delivering swim lessons.

PN76

THE VICE PRESIDENT: Sorry to cut across you. The Fitness Industry Award says it’s an industry award. So I don’t see the basis for saying it’s a vocation award. But doesn’t this involve consideration of what are the classifications in the Amusement Award, and whether any of them extend to the work in question? And isn’t this really a question of demarcation between the two awards based on the range of facilities that are concerned, and the existing definitions?

PN77

MR TAYLOR: To be frank with you on that point, that would require a literal site by site investigation of the major and substantial roles of each employer’s activities. Whether they fell more on the side of the Fitness Industry Award, or the Amusement side.

PN78

THE VICE PRESIDENT: No, it’s not major or substantial. If it falls within the Amusement Award, Amusement Award applies for classifications covered by it.

PN79

MR TAYLOR: Well, if that was the case the ramifications of that logic will have due regard to what you say. It would be that the operation of the Fitness Industry Award in the swim school sector would be severely curtailed. Almost to extinction.

PN80

THE VICE PRESIDENT: Well, doesn’t that have to be the case?

PN81

MR TAYLOR: No. Because there are many swim school operators in the numbers referred to, the 516 member organisations, that relate to only free standing swim schools that have no connection with a public owned bath, or a leisure centre.

PN82

THE VICE PRESIDENT: Or a recreation facility, or sporting.

PN83

MR TAYLOR: No, that’s correct. They are free standing, and there would be no doubt they are the mainstream of the Fitness Industry Award cover. But the other operators falling outside of those (indistinct) explorations of what constitutes the coverage of the fitness industry versus the other award, as I say there’d be shades of grey.

PN84

THE VICE PRESIDENT: I’m not sure how you say that - I don’t know what these facilities are, swim schools you call them. I assume there’s a pool?

PN85

MR TAYLOR: Yes.

PN86

THE VICE PRESIDENT: And I assume that people go there to swim.

PN87

MR TAYLOR: Learning to swim. It’s not a recreational sized pool. It could be, from my observation, it could be a quarter sized Olympic pool which would be no deeper than the amount of water required to accommodate a toddler’s participation in a swimming pool lesson. Whereas others are slightly larger to accommodate adults. But there is no free admission, or paid admission I should say, to the facility to use it as a swim location. You don’t just go and do laps or recreational swimming in these facilities. They are purely dedicated for the operation of swim lessons, or conducting swim lessons.

PN88

THE VICE PRESIDENT: And if you could go and do laps and do training, then it would be a recreation facility or leisure centre, would it?

PN89

MR TAYLOR: I wouldn’t stretch the logic that far.

PN90

THE VICE PRESIDENT: Well, I’m having difficulties when it doesn’t fall within a description.

PN91

MR TAYLOR: There could be, your Honour, in the context of an internal swimming pool in, say, a large fitness club. A facility where individuals go to improve their swimming style and get coached. I would suggest that’s not a recreation facility. That’s about performance based improvement, and your fitness improvement.

PN92

THE VICE PRESIDENT: An aquatic centre where people can go and do laps, and where a swim school operates to teach swimming, where people can go for their general fitness and do laps, that would appear to be a recreation facility?

PN93

MR TAYLOR: Well, but there are other elements to the operation. They could be used, the same body of water could be used for rehabilitation process for individuals. Again, being looked after by persons covered quite clearly by the Fitness Industry Award as part of a rehabilitation process. Now, you can find bodies of water that are found in swim schools, as I described them, doing that function. I can see they can appear in aquatic centres. Or they could be leisure centres. I think it’s probably unlikely they’d be general leisure centres unless there was a restriction on the use of hours because of the nature of undertakings that are involved in those processes.

PN94

However, particularly in swim schools and public pool areas, there could be that third use, which is as a facility based on improving peoples’ health or return to health by way of remedial classes.

PN95

THE VICE PRESIDENT: Yes. And what’s a water aerobics class?

PN96

MR TAYLOR: Well, that’s about fitness. That’s 100 percent about fitness and weight loss. And those are very commonly not recreation. Well, people may get together and use them as a recreation, but the pure intention is to be improvement of health and also weight loss. And that’s a classic example, your Honour, that we do have those facilities and functions operating in a public pool, or again in a fitness club environment, or in a leisure recreation centre.

PN97

THE VICE PRESIDENT: And why is swimming laps any different?

PN98

MR TAYLOR: Well, swimming laps is something that is not structured. And we’re not talking about people swimming laps under the guidance of a coach or swim teacher in that context. That would be either recreation, or it could be an exercise regime for an individual.

PN99

THE VICE PRESIDENT: Well, the concern I have is that what this discussion has highlighted is perhaps a lot of grey between these two awards. It’s not so much grey with the local government award because it’s dependent on who the employer is. But if it’s a non local government employer, depending on the nature of the operation that that employer conducts, it might be a leisure facility, or a leisure centre, it might be a recreation facility, it might be a sporting complex. If it’s none of those things, then it might fall within the Fitness Industry Award. But the ambiguity that you articulated concerns the demarcation between the two awards.

PN100

And I’m not too sure whether a variation to the award that is subservient to the other actually resolves the ambiguity that you point to. And I’m not too sure that all people who might have a relevant interest are aware of the issue that is now being addressed. There could be various leisure and recreation centres that are covered by a different award that may be affected by some consideration of the demarcation between the two awards. And they have had no notice of the application, or knowledge of it because they’re  - - -

PN101

MR TAYLOR: Your Honour, I had due regard to that in the process leading up to the making of the application. And it would be my submission, leaving aside employers who have an interest in the Local Government Industry Award, that had revision during recent times. An attempt was made by myself to engage the Australian Amusement Leading Recreation Association in this discussion. So Australia is actually a member of that organisation. They had members who are across a very broad spectrum of operations, from major theme parks, to private pool operators, to local government pool operators. And they are aware of the nature of the concerns that my clients have raised this morning before you by way of correspondence that was sent to them in July.

PN102

And the only response that we had back from AALRA was from a gentleman who has, if my observation serves me right, was Mr Rod Bradley who is on the board of AALRA, who indicated his view in relation to the organisation that has made the submission R1, which is Royal Life Saving. And he articulated the concerns to me in an email that he has in R1 this morning. So the major industry organisation - I can’t say it’s an employer organisation in the industry because there isn’t one to my knowledge - has been involved or is aware of these proceedings.

PN103

Yes I do contend there might be individual operators out there somewhere as with any application. They might even put valid interest in these matters before you. But there is only so much consultation we can take, unless we’ve got a complete list of who is acting in the industry.

PN104

THE VICE PRESIDENT: That consultation, which has led to a submission against your application, does not appear on your admission to have bought the application, or the concern, or the issue, to the attention of all private pool operators. But there is an opportunity next year when every modern award is reviewed, to look at questions of coverage, and overlap, and grey areas, to clarify these matters which where all the interested parties have the opportunity to be involved in matters concerning relevant awards. So there is that opportunity looming. And given that your application started with a question of refining the classifications of one award it seems to be moving to an issue arising from overlap and demarcation between two awards. Why wouldn’t it be more appropriate to consider this issue in the context of the review of both awards next year?

PN105

MR TAYLOR: For the simple reason, your Honour, the applicant organisations before you today can be accused of being (indistinct) on this exercise to date, because we are now 18 months into the occupation of these two apparently competing awards, when this matter is before the Fair Work Australia for the second time. If we leave it to the review, which I concede is an opportunity, the uncertainty and the vulnerability to claims arising from the appropriateness of one or other or both of the awards, is very much a real concern to the applicant organisation members. And to leave it for a further year or so before we take this issue full will be, I believe, just waiting for the time bomb to go off.

PN106

THE VICE PRESIDENT: Well, the review is next year. You can commence at the start of the year, which means not leaving it for another year. But secondly, how can your application which seeks to vary the Fitness Award deal with the ambiguity between the two awards when the Amusement Award prevails over the Fitness Award when an operation falls within the scope and an employee falls within a classification? How can your application fix that problem?

PN107

MR TAYLOR: Well, it couldn’t. And it gets down to, as I said previously, the specific of each operator’s circumstance. But for those operators who clearly apply, and we certainly believe they’re right in applying the Fitness Industry Award provisions to the bulk of their workforce. They would at least have the satisfaction knowing they had applied an award that had coverage of lifeguards and/or senior lifeguards if their application was successful. In a perfect world, your advocating would be the way to go. But the operation of that review would, I believe, not necessarily be done overnight. And in the context of the award modernisation process, that could be some considerable time down the track before this industry award’s problems were all resolved.

PN108

We are looking to try and resolve this in a minimalist approach, I say that in my submissions, without necessarily upsetting the status quo in the other award, and at the same time we also have been trying to reinstate what we perceived were the proper relativities applying in the previous NAPSAs and the federal awards prior to 1 January last year. This is a stop gap measure, I would suggest.

PN109

THE VICE PRESIDENT: Well, could it create other problems if a facility is truly a recreation facility, like an aquatic centre, such as what I would normally thing is an aquatic centre, that people can go there for leisure activities, and to swim. Not simply to learn to swim. Although learning to swim facilities might also be involved. Might there be some ongoing misunderstanding that the
Fitness Industry Award applies to that operation, and perpetuate the problem when really the priority should be to clarify the ambiguity that you have pointed to.

PN110

MR TAYLOR: The problem would be resolved with reference to the specifics of the organisation. If the organisation’s employment arrangements was such prior to this application being addressed, that they fell under the Amusement Award, nothing we’re putting to you today seeks to change that. If the situation is that the major substantial role of an employer’s operation clearly falls under the ambit of the Fitness Industry Award, they would like the certainty to be able to put to a classification vote which says the lifeguard role is one that reasonably is covered by that award. I note that the submission R1, whilst it’s in opposition to our application, does not argument against where we are seeking to place the roles within the hierarchy contained in the modern award. It just says that there is no ambiguity.

PN111

This discussion today, I think, highlights the nature and the breadth of the problem that we bring to Fair Work Australia, that there is a large degree of uncertainty out there in the community generally about the appropriateness of this particular award.

PN112

THE VICE PRESIDENT: Which particular award?

PN113

MR TAYLOR: The Fitness Industry Award.

PN114

THE VICE PRESIDENT: But isn’t the ambiguity you are pointing to the grey area between the two awards?

PN115

MR TAYLOR: Well yes it is. Yes it is.

PN116

THE VICE PRESIDENT: And that is, as you say, a matter of determining the scope of the definitions in the Amusement Award. Because it applies to the exclusion of the Fitness Industry Award.

PN117

MR TAYLOR: The only other solution would therefore be to remove the exclusion of the Fitness Industry Award from the Amusement Events and Recreation Industry Award. And I suggest that is a significantly larger exercise than what my clients have embarked upon before you today. There would be other parties that would reasonably have an interest in that.

PN118

THE VICE PRESIDENT: With respect, that appears to be the issue. That appears to be a way of remedying the ambiguity that you point to. And it also appears to be something that’s appropriately dealt with as part of the review of awards, considering that that commencement of that process is imminent.

PN119

MR TAYLOR: I would reasonably say it is, reading the definition of 4.2 in the Amusement Events and Recreation Award, an inclusion 4.3, that is, and I will just read it:

PN120

This award does not cover employees of employers where the major and substantial activities are provision of health and fitness services and classes.

PN121

I for the life of me can’t see why there is such uncertainty if we have a swim pool where the public pay for admission as well as a swim school (indistinct) The people who are conducting the swim school part of the exercise could be covered by the Fitness Industry Award, and others could be covered by the Amusements Events and Recreation, working in tandem. Could they not? It doesn’t exclude the coverage of the award from the  - - -

PN122

THE VICE PRESIDENT: If that clarifies the application of the award, that there might not be an ambiguity between the two awards. But I thought you were pointing to the ambiguity between the awards as the basis for your application.

PN123

MR TAYLOR: Well, it’s a twofold exercise, your Honour. It’s the absence of specific reference in hierarchy to lifeguards, and senior lifeguards, in the Fitness Industry Award. And then the interface of all the exclusion and coverage clauses, and including now as a consequence of other submissions, the Local Government Award as well. As I say, generally from the heart, your Honour, I can’t see how approving our application would interfere with the operation of the Amusement Events and Recreation Award as it affects employees and employers currently. Because either you’re in, or you’re out.

PN124

THE VICE PRESIDENT: Which was the clause you just referred to?

PN125

MR TAYLOR: 4.3 in the exclusion. It’s under Exclusions of the Amusement Events and Recreation Award. And it says:

PN126

This award does not cover employees bound by the Fitness Industry Award 2010.

PN127

THE VICE PRESIDENT: Yes. They both exclude the other two awards. They both exclude the other. But the task is to determine whether the major and substantial activity is the health and fitness services and classes.

PN128

MR TAYLOR: That's correct, your Honour. See, just to assist, there could be individuals, I understand, who would move from being a swim teacher providing lessons. Let’s say it’s in a privately owned swim school, and don’t worry about the Local Government Award in this example I’m seeking to develop here, who from one shift as a casual delivers swim lessons, and then goes out and works on the pool deck and does a public safety function, I’ll call it lifeguarding, or pool lifeguarding. That person could then, in a third instance, move back and become the care attendant at the same facility, still covered by the Fitness Industry Award, and the terms and conditions it applied.

PN129

Where the award falls down currently, in our submission, is that there is no specific references to the appropriate rate of pay, or in the classification structure, for that particular element of lifeguarding. The same individual can move around the complex and do those three separate functions, two which clearly fall within the fitness industry role and structure and coverage, but the third one is a question mark as far as we can see as to the appropriateness of the rates of pay.

PN130

THE VICE PRESIDENT: So if I understand what you’re saying, the classifications in the Fitness Industry Award are inadequate because they don’t deal with lifeguarding.

PN131

MR TAYLOR: In the named way. Now, due regard to submission or exhibit R1, they say yes they are covered, but in a round about way they reference the relevant industry experience and/or the national training standards of packages. We contend that it’s not satisfactory, because the average pool operator would look to cover an award, a modern award, that clearly says that this function is covered and this is the rate of pay for that function. Not by readdress to those broad descriptors that are referred to in R1. The economic outcome, your Honour, is identical to the submissions we are making to gain a wage increase out of either the lifeguarding or senior lifeguarding role in this. We are seeking simply to use the existing classification rates of pay structure to try to identify a specific niche in the modern award, the fitness industry modern award, for those two roles.

PN132

If it helps by putting in the exemptions in relation to the Local Government Award and to any other award, well so be it. We are not looking to change the rules on this. We are just seeking to clarify the appropriate rate of pay and classification structure within the Fitness Industry Award. That’s our primary objective. We are not seeking to disturb the operation of the Amusements Events and Recreation Award, because that is a very close award to the activities obviously covered by some – I stress only some – of the applicant organisation’s members.

PN133

THE VICE PRESIDENT: And you are not – I’m reading schedule 2 of your application – you are not saying that the variation is in order to resolve an ambiguity. You are saying that it’s necessary to achieve the modern awards objective.

PN134

MR TAYLOR: As well. As a (indistinct) outcome, yes.

PN135

THE VICE PRESIDENT: The question is of what the test is you are required to meet, and I’m required to judge it against. Because there are two alternative paths. So which is the one that you are following?

PN136

MR TAYLOR: Our primary intention is section 160, which is to address or remove an ambiguity or uncertainty, or correct the error. Reference to the modern award outcome, is simply reference to the fact that there would be no unreasonable economic burden imposed upon the (indistinct) as a consequence of the granting of our application.

PN137

THE VICE PRESIDENT: Well then if you are seeking to remove an ambiguity or uncertainty, or correct an error, then you need to point to what is the ambiguity or uncertainty or error involved, and demonstrate that the variation you seek achieves and remedies that problem.

PN138

MR TAYLOR: Well, the error that we contend is that the award structure I made reference to in my submissions in T1 in detail, by and large did have reference – not universally, but by and large – to either lifeguarding and pool attending. And that direct relationships of the classification structure has not been carried over or replicated, in our view, satisfactorily if at all, in the Fitness Industry Award 2009.

PN139

THE VICE PRESIDENT: So in effect the error is the deficiency in the classifications in the Fitness Industry Award?

PN140

MR TAYLOR: That's correct.

PN141

THE VICE PRESIDENT: By not covering all classes of employees that are engaged in operations covered by the Fitness Industry Award.

PN142

MR TAYLOR: That's correct. Your Honour, we would contend that 95 percent of the workforce covered by the Fitness Industry Award has been adequately dealt with. We would suggest maybe 5 percent of that is the lifeguarding folk. But they aren’t, because of the silence of the award. We don’t see it’s satisfactory by saying the general descriptors in the classifications are pointed out in R1 is the appropriate way of addressing the issue. We want certainty by actual reference to the function. And the discussions between the parties in recent time has sharpened the discussions from lifeguard to pool lifeguard. And indeed I understand there is the late submissions from Life Saving Australia that we define what a pool is even in the context of the Fitness Industry Award.

PN143

We have no concerns with that because we think that is a greater clarification of the outcomes that we seek.

PN144

THE VICE PRESIDENT: What is a beach lifeguard covered by, if they’re a privately - - -

PN145

MR TAYLOR: That would be a classic example, your Honour, of our earlier discussion. I would say they fall, leaving aside the nature of the employer, they would fall under the Amusement Events and Recreation Award, or if the employer is a local government body – and I’m not aware what it would be in Brisbane, for instance, where we’ve got the beach front on the river – it could be a local government award.

PN146

THE VICE PRESIDENT: Yes. And leaving aside the issue of the employer, if the lifeguards employed perform their services on the beach, and sea pool?

PN147

MR TAYLOR: That would be definitely a recreation function and covered by the Amusement Events Award.

PN148

THE VICE PRESIDENT: Because it’s what?

PN149

MR TAYLOR: It could be a private location, like a tourism resort. Or if it was a public municipal beach, controlled beach, that would be the Local Government Industry Award, I respectfully submit.

PN150

THE VICE PRESIDENT: Yes. And there’s probably no private employers operating on a public beach to provide lifeguard services at the pool as well.

PN151

MR TAYLOR: There could be on the Great Barrier Reef with some of those Club Med type resorts that do operate private beaches with seven day lifeguarding functions as part of their tourism services. But they’re the exception, your Honour. That would clearly be, going to our previous discussion, where the different awards would line up. Because they would definitely, in the tourism and leisure industry, be a recreation emphasis on that particular location, so the Amusement Events and Recreation Award would clearly apply.

PN152

THE VICE PRESIDENT: Or maybe the hospitality or the Tourism Award.

PN153

MR TAYLOR: Again, that’s correct. Namely I think seriously we’d be suggesting that shooting a wave at Mooloolaba would be a fitness exercise in the context of how it’s dealt with in the Fitness Industry Award 2009.

PN154

THE VICE PRESIDENT: Okay. So if I have your argument correctly, you say that there is an error in that the classification structure does not cover lifeguarding in the Fitness Industry Award, and that operations that are covered by the Fitness Industry Award do employ such people. And that current situation potentially creates a question as to whether other awards might apply to that person, but at its heart it’s a deficiency in the level of comprehensiveness of the classifications in the Fitness Industry Award, and that should be remedied by inserting lifeguarding classifications into that award.

PN155

MR TAYLOR: That's correct, your Honour. And that’s our case in essence.

PN156

THE VICE PRESIDENT: Yes. I apologise for interrogating you in such a way, Mr Taylor. But any further submissions you wish to make?

PN157

MR TAYLOR: All the points that I was going to submit we’ve actually covered in our conversation, in different form, in different order. So no, your Honour. Other than to say if could, just make very reference to tell on the record, as such, that it’s quite clear where we stand and other peoples’ views, if I may. There was an exchange of correspondence between myself and the federal secretary of the Australian Workers’ Union. Your Honour, that correspondence occurred after the application was made. If I could just read into the record the two letters. They are only very brief, but they indicate what our position is, vis-a-vis I believe the joint submission now of United Voice and the Australian Workers’ Union.

PN158

The letter is dated 6 September addressed to myself, signed by Mr Paul Howard as national secretary:

PN159

We refer to your correspondence of August 3 2011 regarding your proposal to vary the Fitness Industry Award to insert provisions for lifeguards and assistant lifeguards. We apologise for the delay in responding, arising from our own consultation. We advise you that we do not in principle oppose your proposal. Our concern is that the proposed variation should not act to set terms and conditions for all lifeguards regardless of the type of business of the employer. Given the Fitness Industry Award operates as an occupational award, unless other types of businesses are excluded, lifeguards working for licensed clubs or municipality owned pools, for example, would also be covered by the award. We understand from your correspondence that this is not the intention. This is matter that can be dealt with in the coverage clause in the award. For this reason we propose an amendment to your draft variation to also include the following amendment to clause 4.1 coverage of the Fitness Industry Award.

PN160

The letter then details the current 4.1 and 4.2, the award. 4.2 is:

PN161

This award does not cover employers or employees covered by the following awards.

PN162

And the existing award goes down to (f), and this letter seeks to incorporate a new (g), the Local Government Industry Award 2010.

PN163

Finally, your proposal appears consistent with the current classification structure in the Fitness Industry Award. Our consent is for us to produce to our right to argue at an appropriate time that your structure undervalues the work and the qualifications required to perform it. You will recall that the Full Bench in the award modernisation foreshadowed a review of the classification structure in levels once the then current review of the industry training packages were completed.

PN164

It went on to say:

PN165

Should you wish to discuss this matter, please contact legal offices (indistinct).

PN166

I responded on behalf of my clients, your Honour, to that letter in the following terms, if I may and it’s very brief. On 9 September, I addressed it to the national secretary, but attention Ms Angus.

PN167

I write further to the letter dated 6 September signed by Mr Howard as national secretary in relation to the above matter. I have consulted my clients and can advise the following. (1) we note your reservation of the right to argue the appropriate value of the work performed by the subject group before the award modernisation bench review. (2) we accept your proposed amendment which seeks to add a reference to Local Government Industry Award 2010 in subclause 4.2 of the Fitness Industry Award 2010. (3) an application was lodged on behalf of my clients on 30 August and posted on FWA’s website on 5 September. The application reflected feedback received from interested parties to letters circulating in the same terms as that faxed to Mr Howard on August 3rd. Pending any further responses received up to the point of the formal listing of the matter, I can confirm that our application will be varied to accommodate the AWU’s views expressed in the letter of 6 September. Yours faithfully.

PN168

And I signed that on behalf of my clients. See, our situation is, your Honour, we would ask consideration be given for leave to be granted to vary our application in the terms covered by Mr Howard’s letter to myself, and indeed referred to, I understand, United Voice’s submission that was lodged on the website late yesterday afternoon. In relation to the final submission that was received yesterday afternoon  - - -

PN169
PN170

THE VICE PRESIDENT: Before you go to that, Mr Taylor, how can that process of amending your application now ensure that all those with a relevant interest, such as those covered by local government awards, would have knowledge and an opportunity to make input into that amended variation?

PN171

MR TAYLOR: I take your point, your Honour. The commitment was given by myself on behalf of my clients, pending the submissions that were received subsequent to that letter being sent out. We have no objection to extending the application. We are not even at ease with exercise, although we are puzzled by the need for it. But if it was an impediment to the matter being addressed before you successfully today, I would suggest it be open to the parties who have an interest in this to make a further application to vary the award, if that extended variation was an impediment to our application being successfully dealt with.

PN172

THE VICE PRESIDENT: I am happy for you to amend the award, but I would also require a process of notifying those that are potentially affected. So that they have the opportunity of making submissions in the matter. So one way of dealing with it, and it’s your choice, is for you to tender that correspondence, that correspondence goes on the website. You also file an amended application which deals with it all. And given, as I understand, it relates to an exclusion of the Local Government Award that the amended application be served on the unions and employer associations who subscribe to the Local Government Award.

PN173

MR TAYLOR: Can I reserve our decision on that?

PN174

THE VICE PRESIDENT: Yes, you can consider that. As I say, that’s one option. But if you are minded to amend your application, that’s what I think would be necessary. Sorry, I interrupted you. You were about to move to  - - -

PN175

MR TAYLOR: I was going to say, there has been no discussion between myself or representatives of either United Voice, including Mr Swankest, or Ms Angus for the AMWU on the issue of that. Our concern, our focus this morning, is the application as lodged being dealt with reasonably and promptly. I should just for the record indicate that the Local Government Award has an exemption to the Fitness Industry Award and the application, as I understand it explained by Mr Howard’s organisation, is simply to have a complimentary exemption in the Fitness Industry Award. As I say, we have given our indication that we would support such an application if it was made, or amend our own application.

PN176

So if I can reserve my position on what the alternatives might be, subject to Mr Swancott’s submissions.

PN177

THE VICE PRESIDENT: Yes. Mr Swancott on behalf of the AMWU might be going to convince me about the vocational nature of the Fitness Industry Award. But I was going to ask Mr Wilkinson first perhaps before getting to you, Mr Swancott. Mr Wilkinson?

PN178

MR WILKINSON: Thank you, your Honour. I represent Fitness Australia. And Fitness Australia’s position is neither to support nor oppose the original application by Australian Swim Coaches and Teachers Association and Swim Australia. We are fairly solid on that.

PN179

THE VICE PRESIDENT: You sound lukewarm.

PN180

MR WILKINSON: Well, we’re not overly – it’s fine. If it goes ahead, it goes ahead. To a degree, it will make it clear that there is a specific requirement perhaps to cover, and moreso in the discussions from this morning with Mr Taylor. I think that Fitness Australia would certainly agree with his interpretation of the award and the coverage for people who are acting in fitness centres and gyms. That the award in its wording now may be a little lax in not covering those that have lifesaving qualification. But as I say, we have canvassed our members that are involved in that, and they wanted leave to status quo as is, for various reasons.

PN181

But the interpretation is as I would tend to indicate as what Mr Taylor has put forward. I might also make a point to thanks, your Honour. The further application by United Voice in their submission at points 8 and 9 to include an exemption to the Local Government Industry Award, Fitness Australia would not necessarily find that that would be needed to amend this award by United Voice, which also agrees with the AWU’s submission. Because we are not fully in agreement that it’s a vocation award. Thank you, your Honour.

PN182

THE VICE PRESIDENT: Thank you, Mr Wilkinson. Mr Swancott.

PN183

MR SWANCOTT: Well, your Honour, the first thing I should say is that we thought this would be a reasonably straight forward matter. Our view was that the proposed variation would have a limited application in the future. As we understand the operation of the Fitness Industry Award, and this proposed application, that limited the effect, if you like, that would be brought about, would be that operators of aquatic centres who provide aquatic services or classes, and in the provision of those services or classes employed a life saving qualified, or lifeguard at the pool, would have any uncertainty about the coverage of the award to those classifications removed.

PN184

So in other words, as we understand it on 20 July 2010 the tribunal as presently constituted issued a determination to clarify and to insert swimming or beginning swimming and water safety teaching classifications in the award. As we understand it, that had its main application for operators of aquatic centres, providing aquatic services or classes. Now, we saw this application as meeting a gap which was the specific designation of pool lifeguards, and nothing more or less than that. And that’s the reason that we supported the proposition, subject to the caveats about the minimum rates of pay in the award which will be a matter, I understand, will be dealt with next year in the mid-term review.

PN185

The question of the exclusion, or inclusion of an exclusion, for the Local Government Award was raised by the Australian Workers’ Union and by the Australian Services Union in discussions with my union, the ASU having wide membership and coverage in a local government area. Again to put beyond doubt any suggestion that this variation was seeking to make prescription for lifesavers or lifeguards generally. I must say, your Honour, that I agree that this is an industry award, and expressed to be an industry award, and don’t necessarily agree that it has any occupational reach beyond the fitness industry as described.

PN186

And it’s therefore probably strictly unnecessary to exempt or exclude the local government award. But it was put forward as a means of avoiding doubt.

PN187

THE VICE PRESIDENT: I guess I was labouring under the difficulty of not having the correspondence in front of me as I was listening to Mr Taylor, but I thought the effect of what the AWU were saying, perhaps mistakenly when I read paragraph 9 of your submissions, that there was some suggestion that lifeguards employed by local government entities should be covered by the Fitness Industry Award.

PN188

MR SWANCOTT: No, it’s the opposite.

PN189

THE VICE PRESIDENT: It’s the opposite?

PN190

MR SWANCOTT: Yes. The AWU’s position, and as I understand the ASU’s position, is that lifeguards employed by local governments should be covered by the Local Government Award.

PN191

THE VICE PRESIDENT: Yes. And presently there is an exclusion in the Local Government Award for the Fitness Industry Award.

PN192

MR SWANCOTT: Yes, that’s my understanding.

PN193

THE VICE PRESIDENT: But there is no exclusion in the Fitness Industry Award for the Local Government Award.

PN194

MR SWANCOTT: That's right. And there are mutual exclusions in the Amusement Award and the Fitness Award. So the one that’s left out is the Local Government Award.

PN195

THE VICE PRESIDENT: Yes. If it’s to achieve that, then it’s unlikely to affect any rights of local government employers, or unions involved in those awards, simply to protect what is the status quo of the normal understanding that a local government employer would employ lifeguards under its own instruments, its own Local Government Award.

PN196

MR SWANCOTT: Yes. That’s the beginning and end of that local government exclusion proposition, simply a clarification so everyone, if there is any doubt or ambiguity, it’s resolved immediately by reference to that clause.

PN197

THE VICE PRESIDENT: Yes.

PN198

MR SWANCOTT: And as I indicated, your Honour, the view we take is that the fitness industry is defined in a way which is complimented by the definition of the definitions in the Amusement Award, in that if you are operating, for example, an aquatic centre and providing aquatic services and classes, then there is specific provision for you in the Fitness Industry Award and the general provisions of the Amusement Award would not prevail. That’s the view we take.

PN199

THE VICE PRESIDENT: Well, would that depend on their operation of clause 4.3(a)?

PN200

MR SWANCOTT: Well, clearly it would depend on the operation because that they’d be read together. But the concern that I had that arose from Mr Taylor’s original approach to us, was that the introductory words to clause 4 confine the operation of the Fitness Industry Award to employees in the classifications in the award. And as we understood the proposition, it was simply to make sure that the classification of pool lifeguard was designated in the award for the employers in the fitness industry, and not the other.

PN201

THE VICE PRESIDENT: Yes.

PN202

MR SWANCOTT: Thank you, your Honour.

PN203

THE VICE PRESIDENT: Thank you, Mr Swancott. Mr Taylor, I think I’ve changed my view as to whether further communication of an amended application is necessary, given that I had misunderstood the effect of the correspondence that you read out. Do you have anything further you wish to submit in reply?

PN204

MR SWANCOTT: No, your Honour, I don’t. Thank you.

PN205

THE VICE PRESIDENT: Thank you for those submissions everyone. I am of the view that the absence of lifeguard classifications in this award gives rise to an uncertainty and may be said to be an error in the drafting and finalising of classifications covered by this award. And in view of that, I would propose to make the variation sought in the application as amended as a result of submissions made by Surf Life Saving Australia and addressed by the parties in the proceedings today. And further, that I would be prepared to make the variation proposed in the foreshadowed amended application regarding an exclusion of employees covered by the Local Government Award.

PN206

I would ask the applicant to file with my associate a draft order reflecting the amended application, and I will issue that determination varying the award in due course. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [11.21AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 SUBMISSIONS OF ROYAL LIFE SAVING SOCIETY OF AUSTRALIA, AND ROYAL LIFE SAVING SOCIETY OF AUSTRALIA NSW BRANCH, AND ROYAL LIFE SAVING SOCIETY OF AUSTRALIA QLD BRANCH DATED 20/09/2011 PN12
EXHIBIT #T1 SUBMISSIONS OF MR TAYLOR ON BEHALF OF THE APPLICANT PN13