Grace Borschman v Tribe Mvmnt T/A Horsepower Strength and Conditioning

[2022] FWC 302

[2022] FWC 302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Grace Borschman
v

Tribe Mvmnt T/A Horsepower Strength and Conditioning

(C2022/767)

COMMISSIONER PLATT ADELAIDE, 15 FEBRUARY 2022

Dispute in relation to classification structure under the Fitness Industry Award 2020

1. On 27 January 2022, Ms Grace Borschman (the Applicant) made an application for the Commission deal with a dispute under s.739 of the Fair Work Act 2009 (the Act).

1. The dispute is between Ms Borschman and her employer, Tribe Mvmnt T/A Horsepower Strength and Conditioning (the Respondent or Horsepower) and concerns the correct classification of the Applicant under the Fitness Industry Award 2020 (the Award). Ms Borschman contended in her application that she should be classified as a Level 4A under Schedule A.6.1 of the Award, or in the alternative as a Level 3A under Schedule A.4.1. The Respondent maintained that Ms Borschman was correctly classified as a Level 3 under Schedule A.3.1.

Jurisdiction

1. Clause 28 of the Award contains the Dispute Resolution process:

“28.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

28.3 If the dispute is not resolved through discussion as mentioned in clause 28.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.

28.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 28.2 and 28.3, a party to the dispute may refer it to the Fair Work Commission.

28.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.”

1. In her application, Ms Borschman outlined the process that she had undertaken in relation to the dispute at the workplace level. There was no dispute, and I am satisfied, that the requirements of clauses 28.2 and 28.3 had been met, allowing Ms Borschman to make her application to the Commission. The dispute concerns a matter under the Award.

1. A conference was conducted on 8 February 2022. During the conference Ms Borschman conceded that she did not meet all of the necessary requirements to be classified at Level 4A.  I addressed the parties on the powers conferred on the Commission, including the requirement for consent in order for me to exercise arbitration powers. The Applicant and the Respondent consented to having the matter arbitrated.

Requirements of the Award

1. I informed the parties that the remaining question to be determined was limited to whether Ms Borschman met the requirements of a Level 3A. Both parties were directed to provide information and submissions in respect of the below requirements relevant to the question to be determined:

“A.4.1 An employee at this level performs the duties of a Level 3 and who:

(a)   holds a:

(i) Fitness Industry or Sport Coaching (specialising in tennis) AQF Certificate Level III qualification relevant to the classification in which they are employed or equivalent;

… and

(b)   utilises the skills and knowledge derived from the Sport Coaching (specialising in tennis) or relevant AQF Certificate Level III competencies relevant to the work undertaken at this level.” (emphasis added)

1. The Applicant filed her materials on 9 February 2022 including a copy of her “Certificate IV in Fitness: SIS40215” (the Certificate) issued by the Australian Institute of Personal Trainers. The Certificate includes a statement that the Applicant has been assessed as having fulfilled the following requirements (amongst other things):

·   Instruct fitness programs.

·   Recognise and apply exercise considerations for specific populations.

·   Instruct exercise to older clients

·   Promote functional movement capacity.

·   Provide motivation to positively influence exercise behaviour.

·   Instruct personal training programs.

·   Instruct strength and conditioning techniques.

·   Instruct exercise to young people aged 13 to 17 years.

1. The Applicant provided a written statement/submission which stated that she undertook the following tasks during her employment, and that they utilised learnings from her Certificate training:

·   Instructing Horsepower’s fitness programs in the form of fitness classes which are pre-programmed by the head coach.

·   Adapting pre-written programs or tailored programs to suit members and clients if they have injuries, illnesses, health conditions or they are pregnant.

·   Conducting regular one-on-one sessions with an older client.

·   Looking for correct movement techniques and correcting members and clients on their techniques when necessary as well as providing range of motion and flexibility improvement exercises to clients and members when necessary to help them achieve correct techniques.

·   Constantly motivating members and clients throughout their classes and one-on-one sessions, as well as encouraging them to be active outside of the gym and attend sessions as often as they can.

·   Regularly taking one-on-one personal training clients and writing programs for those clients that suits their fitness goals and needs.

·   Performing and coaching strength and conditioning movements and promoting correct techniques for these movements in both group classes and one-on-one sessions.

·   Regularly having young people aged 13 to 17 participate in the group classes that she instructed.

1. On 11 February 2022, the Respondent contacted my Chambers noting that it did not wish to file any material and/or challenge any of Ms Borschman’s statements in relation to the work she completed with the Respondent, nor provide any submissions on whether Ms Borschman met the requirements of a Level 3A.  The Respondent advised that it would accept my ruling on the matter.

1. Given that no factual dispute arose, with the consent of the parties I determined to make my Decision on the papers.

Consideration

1. As outlined above, the question to be determined was whether Ms Borschman met the requirements of a Level 3A as outlined in Schedule A.4.1 of the Award.

1. For the purposes of Ms Borschman’s application, the key requirements can be summarised as follows:

·   The employee performs the duties of a Level 3;

·   The employee holds a AQF Certificate Level III qualification relevant to the classification in which they are employed; and

·   The employee utilises the skills and knowledge derived from the AQF Certificate Level III competencies relevant to the work undertaken at this level.

1. The undisputed evidence before me establishes that Ms Borschman meets the Award requirements to be classified at Level 3A.

1. In particular I note that Ms Borschman utilises the skills and knowledge derived from the Certificate in her work with the Respondent. In her material, Ms Borschman listed eight of the competencies from her qualification and detailed how those competencies were utilised in her position with the Respondent. This evidence was unchallenged, and I am bound to accept it.

1. I accept that the Applicant utilises the skills and knowledge derived from her AQF Certificate Level III competencies relevant to the work undertaken.

Conclusion

1. I find that the Applicant meets the requirements of Schedule A.4.1 of the Award such that her correct classification under the Award, from the date she commenced employment with the Respondent or from the date she was awarded her AQF Level 3 Certificate (whichever is the later), is as a Level 3A.

1. The Respondent should recalculate the Applicant’s wage and entitlements accordingly.

COMMISSIONER

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