Mr Darin Paulin v Gymsports

[2015] FWC 2604

[2015] FWC 2604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Darin Paulin
v
Gymsports
(C2015/1547)

Health and welfare services
DEPUTY PRESIDENT ABEY	HOBART, 16 APRIL 2015

Decision Alleged dispute about any matters arising under the modern award and the NES; [s146] - fitness industry - indoor sports centres - found that award has application - classification - qualification - level of supervision.

[1] Mr Darin Paulin (applicant) has lodged an application (s739) to deal with a dispute in accordance with a Dispute Settlement Procedure.

[2] Mr Paulin was employed as a gymnastics coach with Gymsports Management Pty Ltd (respondent)(Gymsports) from June 2013 until February 2015. He contends that he was incorrectly classified for the duration of this employment. The Director of Gymsports is Mr Mark Moncur.

[3] Mr Paulin contends that he was classified as a Level 1 under the Fitness Industry Award 2010 (award) whereas he maintains he should have been classified at Level 4A. The award contains a clause dealing with Dispute Resolution (clause 9) which provides for consent arbitration. However in addition, the Level 4A definition in Schedule B contains the following:

“Any dispute concerning an employee’s entitlement to be paid at Level 4A may be referred to the Fair Work Commission for determination. The Fair Work Commission may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from the AQF Certificate Level IV competencies, and that these are relevant to the work the employee is doing.”

[4] A similar provision appears in the definition of Level 3A. It follows that the Commission has jurisdiction to determine the dispute.

Jurisdictional Issue: Is the Employer Award Free?

[5] Prior to the initial conference the respondent raised the jurisdictional question as to whether the award had application. This matter was the subject of a hearing on 3 March 2015 at which time the parties agreed to present evidence and argument on both the jurisdictional and substantive matters, on the understanding that the jurisdictional issue would be determined first. In addition both parties submitted additional documentation and submissions in writing subsequent to the hearing.

[6] The letter of engagement dated 4 June 2013 states:

“2.1 Unless more generous provisions are provided in this letter or in the attached schedule, the terms and conditions of your employment will be those set out in the Fitness Industry Award and applicable legislation.

…

3.1 You will be classified under the Gymsports Management Pty Ltd as a level 2 which is equivalent to being employed as a Level 2 under the Fitness Industry Award.”

[7] Mr Moncur explained that this position was based on advice from Gymnastics Australia at the time. However subsequently Gymnastics Australia had modified this position and “is no longer recommending a benchmark award as it believes clubs could fall under a range of industrial instruments according to their structure and State of operation.”¹

[8] Clause 4.1 ‘Coverage’ reads:

“4.1 This industry award covers employers throughout Australia engaged in the fitness industry and their employees in the classifications in the award to the exclusion of any other modern award.”

[9] The Coverage clause also captures employers supplying labour on an on-hire basis [labour hire] in the industry (cl. 4.7) and Group Training employers providing trainees who are engaged in the industry (cl. 4.8).

[10] The ‘fitness industry’ is defined in clause 3 as:

“fitness industry means the operation or provision of:

(a) fitness centres;

(b) fitness services or classes;

(c) group fitness organisations;

(d) weight loss/control centres;

(e) aquatic centres;

(f) aquatic services or classes;

(g) indoor sports centres;

(h) golf driving ranges;

(i) dance centres;

(j) martial arts centres; and

(k) recreational camps”

[11] The question to be determined is whether Gymsports is engaged in the operation or provision of an indoor sports centre.

Relevant Relationships

[12] The Kingborough Sports Centre is a relatively large multi-sport venue owned by the Kingborough Council. Within the facility is a dedicated gymnastics centre which was established largely as a consequence of a substantial Commonwealth grant.

[13] The Kingborough Gymnastics Association (Association) is a not for profit organisation run by a group of parents whose children participate in the gymnastics sport. The Association owns the equipment in the centre and contracts out the provision of coaching services.

[14] Currently Gymsports holds a 20 year contract for the provision of gymnastic coaching services to the Association. Through a lease arrangement, Gymsports pays the Association a fee for the use of equipment and the venue. A similar business model exists in the Huon Valley and in Clarence.

[15] Gymsports employ the coaching staff. They are not employed by the Kingborough Sports Centre.

Respondent’s submissions

[16] The respondent’s contention is that Gymsports is not in the business of running an indoor sports centre; rather, it is in the business of providing coaching services.

[17] The respondent acknowledged that organisations such as YMCAs are subject to the award, because they are in the business of operating their respective sports centres, as well as employing the coaching staff. This includes Gymsports’ major competitor, Hobart Police and Community Youth Club (PCYC).

[18] Ms Norman, for the respondent, submitted that the definition of ‘fitness industry’ in the award referred to “fitness services and classes” and “aquatic services and classes” immediately following “fitness centres” and “aquatic centres” respectively. This, Ms Norman contends, can be distinguished from “indoor sports centres” which do not have an attendant reference to “indoor sports centres services or classes”, which would be expected if it was intended that award cover businesses such as Gymsports.

Conclusion

[19] The popular conception of an indoor sports centre is that of a complex, housing multiple sports which are conducted indoors. The Kingborough Sports Centre certainly meets these criteria.

[20] However in my view there is no inherent reason why an indoor sports centre needs to host multiple sports. On its face an indoor sports centre is a complex in which at least one ‘sport’ is conducted indoors. I am satisfied that gymnastics is both a ‘sport’ and is conducted indoors.

[21] In a similar vein I see no reason why a venue might not be broken into its constituent parts (separate sports) and still meet the common understanding of an indoor sports centre. I see no reason why a facility dedicated to one sport within a larger multi-sport complex would not be viewed as an indoor sports centre in its own right.

[22] The home web page of the Kingborough Sports Centre lists the various sports and activities available within the centre. Gymnastics is found under the link titled “Other Sports Located at the Complex”. The Gymnastics link states:

“The Kingborough Sports Centre Gymnastics Club takes pleasure in inviting all children and parents to the centre.”

[23] From the evidence it would seem that the gymnastics program is open to the public and individuals can enroll for classes on a casual basis.

[24] There is no doubt that if the gymnastics coaching staff were employed directly by the Kingborough Sports Centre, they would be subject to the award. Does it logically follow that if an identical service is provided by a third party contractor, then the employees of such contractor are award free?

[25] I think not. The distinction is quite artificial in nature and is at odds with the clear coverage that extends to employees of labour hire and group training businesses, notwithstanding that the direct employer is not (in this case) the Kingborough Sports centre.

[26] I accept that Gymsports is not the operator of the Kingborough Sports Centre. However it leases equipment and pays rent for the gymnastics venue and conducts its business within the gymnastics centre. On that test alone I conclude that Gymsports is the operator of a discrete indoor sports centre which is used for the express purpose of gymnastics coaching.

[27] I conclude that the Fitness Industry Award applies to Gymsports insofar as the employment of Mr Paulin is concerned.

What is the Correct Classification?

[28] The application states that Mr Paulin was paid as a Level 1 whereas he maintains he should have been paid at a level 4A.

[29] It is not entirely clear at which level Mr Paulin was paid. The letter of appointment dated 4 June 2013 states:

“You will be classified under the Gymsports Management Pty Ltd as a level 2 which is equivalent to being employed as a Level 2 under the Fitness Industry Award.”

[30] It would seem that Mr Paulin was paid at the rate of $21.14 per hour.² I assume this was a casual rate of pay although it would seem that Mr Paulin was a full-time employee for at least part of the employment duration. The actual rates of pay under the award for both full-time and casual employees are set out in the table below.

Fitness Industry Award

Full-time per week

As at 1/7/2013	As at 1/1/2014	As at 1/7/2014	As at 1/1/2015
Level 1	622.10	622.10	640.90	640.90
Level 2	639.50	639.50	659.40	659.40
Level 3	678.30	678.30	708.20	708.20
Level 3A	700.00	712.10	733.60	746.30
Level 4	732.60	732.60	776.90	776.90
Level 4A	766.50	778.60	801.90	814.30

Casual per hour

As at 1/7/2013	As at 1/1/2014	As at 1/7/2014	As at 1/1/2015
Level 1	20.30	20.30	21.08	21.08
Level 2	20.87	20.87	21.69	21.69
Level 3	22.13	22.13	23.30	23.30
Level 3A	22.84	23.24	24.13	24.55
Level 4	23.91	23.91	25.56	25.56
Level 4A	25.01	25.40	26.38	26.78

[31] A considerable amount of the evidence and argument in this matter went to the Coach Education Framework and Accreditation Policy of Gymnastics Australia.³ Whilst this has some relevance, the overriding consideration is the classification structure in the Award and how this relates to the work required of and performed by Mr Paulin. This decision is to be read with reference to the relevant definitions found in Schedule B of the Award.

[32] Level 1 makes no reference to coaching and hence can be disregarded.

[33] The Gymnastics Australia coaching framework provides for six levels of accreditation ranging from beginner coach to master coach. Relevant to this matter are the first three levels, being beginner, intermediate and advanced. There was no evidence as to Mr Paulin’s level of accreditation, if indeed he holds accreditation.

[34] The sport of gymnastics has 10 levels across seven disciplines.

[35] The evidence of Mr Paulin is that he coached from level 3 up to level 8, and coached level 4 State championships. Further, Mr Paulin maintains that he coached skills on a daily basis which are consistent with the Gymnastics Australia advanced course accreditation skills matrix.⁴

[36] The respondent acknowledged that on occasions Mr Paulin coached up to Level 8, particularly in a relieving capacity. However this was not Mr Paulin’s predominant role which was at Level 3 and 4.⁵

[37] Mr Paulin holds a Fitness Industry AQF Certificate Level IV. He states that this was made known to employer at the time he was first engaged. There is no evidence one way or the other as to whether this was an advertised requirement of the role. The document titled ‘Casual Coach/Instructor Job Responsibilities’ attached to the letter of appointment is silent on the matter of qualifications other than a reference to maintaining relevant accreditation/s through attending workshops.

[38] Mr Paulin contends that this certificate is a recognised qualification under the award because the knowledge gained through it can be applied throughout the industry and is not sport specific. He refers in particular to course units relating to anatomy, biomechanics, physiology, psychology, exercise planning and periodization as well as delivering exercise to children. Mr Paulin also referred to the Advanced Coach Accreditation of Gymnastics Australia which, under ‘course content’, identifies ‘anatomy and injury prevention’, ‘mechanics of movement and skill analysis’ and ‘physical preparation, training and development.’⁶

[39] Mr Paulin said Mr Moncur had asked him to run strength and conditioning workshops within the gym for the education of other coaches. This was towards the end of Mr Paulin’s engagement and whilst there is no doubt the request was made, it is not clear as to whether the workshop program had actually commenced.⁷

[40] The respondent contends that the qualification is specific to the fitness industry and not particularly relevant to gymnastics coaching and that whilst some generic crossover is acknowledged, the certificate would not automatically provide a ‘Recognised Prior Learning (RPL)’ exemption for coaching accreditation. The respondent submits that some units of the fitness qualification have limited application to gymnastics accreditation, but all fall short of competencies required for an advanced coach.⁸

[41] In terms of supervision, the parties are agreed that for the first month or so of employment Mr Paulin was subject to direct supervision. Thereafter Mr Paulin contends that he conducted classes by himself, without supervision. He said:

“In terms of direct supervision, I don't remember the last time I was directly supervised in a gym. When he talks about supervision, we have a gym that has probably got 3 or 4 hundred people in it of an evening. There's one gym floor supervisor monitoring the whole facility and he's saying that I was under direct supervision.”

[42] The evidence of Mr Moncur is:⁹

“Thank you. Could you explain the level of supervision that you believed the applicant was under?---Yes.

Direct supervision, general supervision, limited supervision?---Yes. So he wasn't under direct supervision. The supervision that Darin was under was that there were other coaches in the gym at the same time that he was coaching. If there was a situation where Darin was coaching something that wasn't appropriate, those coaches would be stepping in. So pretty much, I would suggest that the majority of times when Darin was coaching we would have had probably about five senior coaches who have - are qualified supervisors with Gymnastics Australia and in Gymnastics Australia's guidelines you can be taking your own class and also provide for the general supervision over other classes as well.”

[43] And later:¹⁰

“So if I'm coaching those skills, wouldn't you use that as a classification for what level I should be classified at?---No, because we are using your actual - the accreditations that you are doing. At the moment for you, we can't use you in the role of coaching these skills independently. You'd still need to be --

But I do coach those skills independently?---No. Well, I'd disagree - that you are under a general supervision in the gym.”

[44] I note that there is a position within the Gymsports staff structure known as Mens’ Artistic Gymnastics (MAG) Team Leader which is responsible for the overall boys program.

Conclusion

[45] It is axiomatic that a qualification is only a relevant consideration when it is firstly, required, and secondly, utilised. An extension of this general principle is that a qualification may be a relevant consideration even if it is not a mandatory prerequisite, provided the skills and knowledge which attend such a qualification are accepted by the employer and used to benefit the business.

[46] In this case there is no evidence that a Fitness Industry AQF Certificate Level IV was a mandatory prerequisite for the position. I do however accept that Mr Paulin made it known to the employer that he held such a certificate at the time of appointment.

[47] Based on the evidence I conclude that the certificate, whilst falling short of automatic acceptance within the gymnastics field, does have some meaningful relevance to gymnastics in the sense that a number of core units have crossover significance to a number of sports, including gymnastics.

[48] Allowing for this limitation, I am satisfied that Mr Paulin was utilising the skills and knowledge derived from this qualification in undertaking his work as a gymnastics coach. This on its face would mean that Level 4A would be the appropriate classification. However the Level 4A only becomes a consideration if the definition for level 4 is satisfied. Put another way, an individual can only be classified at level 4A if the requirements of Level 4 are also met.

Level 2 relevantly states:

“(b) works from instructions or procedures and under direct supervision either individually or a team environment, and is primarily engaged in one or more of the following duties:

(i) assisting with classes and directing activities in a centre.”

[49] In my view the Level 2 classification was appropriate for the first month or so of Mr Paulin’s engagement when he was clearly working under direct supervision.

[50] Given that thereafter the level of supervision could only be described as either ‘general’ or ‘limited,’ Levels 3 and 4 become a relevant consideration.

[51] The relevant sections from each classification read as follows:

Level 3

“An employee at this level works under general supervision which requires operation within defined areas of responsibility with adherence to established guidelines and procedures and who is employed to carry out work associated with the centre’s operation.”

Level 4

“An employee at this level works under limited supervision and guidance and is required to exercise initiative and judgement in the performance of their duties and who is employed to carry out work associated with the centre’s operation.”

[52] The evidence is that Mr Paulin was responsible for his own class but worked in an environment whereby there was invariably at least one other more qualified coach present on the floor and exercising overall supervision. This in my view meets the definition of ‘general supervision’, whereas in the case of ‘limited supervision, the person exercising the supervision need not be physically present.

[53] Little or no evidence was presented on the questions of responsibility, initiative, guidelines and procedures. Given the existence of a MAG team leader, I can only assume that it is likely Mr Paulin was operating within a defined area of responsibility with established guidelines. This can be contrasted with the definitional requirements of Level 4 which refers to limited supervision and guidance and broad instructions, the requirement to exercise initiative and judgment with work being checked on an intermittent basis.

[54] In my view the descriptors of Level 3 provide a better fit for the work performed by Mr Paulin than does Level 4. It follows that level 4A cannot be a consideration notwithstanding my finding in relation to the certificate.

[55] After the initial training/induction period, the requirements of level 3 are clearly met. Given my finding in relation to the certificate, it logically follows that level 3A, which refers to a Certificate Level III, would also apply to Mr Paulin.

[56] Based on the material before the Commission, I conclude that Mr Paulin should have been paid as a Level 3A from 1 August 2013 for the duration of his employment with the respondent.

[57] I direct the respondent to prepare a calculation as to the difference between that which Mr Paulin was actually paid and that which he is entitled to as a consequence of this decision. The resulting difference is to be paid to the applicant within 21 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant: Mr Paulin in person

The Respondent: Ms Norman for and with Mr Moncur

Hearing details:

Hobart

3 March 2015

Final written submissions received 23 March 2015

1 Email from M Moncur dated 13 March 2015

2 Email from M Moncur dated 19 March 2015

3 Exhibit R1

4 Transcript PN 242

5 Transcript PN 320

6 Correspondence dated 10 March 2015 with attachments.

7 Email from M Moncur dated 1 February 2015

8 Correspondence from Gymnastics Australia dated 18 March 2015

9 Transcript PN 242

Transcript PN 320

Correspondence dated 10 March 2015 with attachments.

Email from M Moncur dated 1 February 2015

Correspondence from Gymnastics Australia dated 18 March 2015

Transcript PN 288

10 Transcript PN 387

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