Thursday, 12 August 2021

Assessing Modern Award Coverage Still a Difficult and Risky Exercise – King v Melbourne Vicentre Swimming Club Inc

Recently, the Full Federal Court overturned a decision that a swimming coach was not covered by the Fitness Industry Award 2020 (Award), opening the way for the coach to pursue a six-year underpayment claim against his employer for failure to pay specific award entitlements.

This decision emphasises the difficult nature of award classification and interpretation, reflected by the Federal Court and Full Federal Court coming to different conclusions regarding whether this swimming coach was, in fact, Award covered.

The decision also highlights the risks and implications on employers should they get award coverage wrong in relation to their staff – including backpay and potential breaches of the Award.


Mr King was employed as a swimming coach by Melbourne Vicentre Swimming Club Inc (Club). When Mr King started coaching at the Club, he held a Bronze Licence swim coaching qualification and subsequently obtained a Silver Licence.

The main issue on appeal was whether the primary judge had correctly determined that Mr King’s employment was not covered by the Award.

Relevant Award Provisions

It was generally accepted that the Club was an employer engaged in the ‘fitness industry’, as defined by the Award.

The sole issue for determination was whether Mr King’s employment fell within one of the classifications in the Award, and in particular, Level 4 of the Award.

Specifically, the Award stated that a Level 4 employee “may” be a coach of ‘beginner swimmers’ who held a ‘Bronze Licence’. As Mr King held a Silver Licence and coached mid-range swimmers, the Club asserted that Mr King was not covered by the Award, as Mr King’s level of work and qualifications, meant he exceeded the Level 4 criteria and he therefore did not fall within the coverage of that Award.

Full Federal Court Decision

As each Modern Award is different and unique, in making its determination, the Full Federal Court analysed the history of the Award (including its pre-modern Award roots as well as its formation by the Australian Industrial Relations Commission (AIRC)) as well as the “architecture of the classification structure”.

On this basis, it determined that – for this Award – the Level 4 classification only prescribed the minimum requirements. That is, a swim coach at minimum needed to have a Bronze Licence. Further, in making the Award, ‘elite coaches’ were not specifically excluded by the AIRC. Therefore, holding a Silver Licence nor coaching senior swimmers did not take Mr King outside the coverage of the Award.

Accordingly, Mr King is now able to pursue award specific entitlements from the Club which he did not receive over the course of his employment – such as, for instance, the broken shift allowance.

Other recent cases

The above matter is the most recent in a string of cases concerning award coverage and classifications, and the inherent difficulties in doing so.

In June this year, the Fair Work Commission determined a classification dispute under the Contract Call Centres Award 2020. In that case, a departing employee asserted that he should have been classified as Level 2 – not a Level 1 – and therefore entitled to backpay. In that case, the Commission found in favour of the employer, finding that the employee’s role did not contain the “breadth and depth of tasks that would place him consistently at the level 2 classification”.

Also in June this year, the Full Bench of the Fair Work Commission lamented the difficulties in classifying an engineer under the Professional Employees Award 2020 – ultimately finding that the principal purpose of her employment did not marry up or bear a ‘meaningful relationship’ with the classifications in that Award.

Lessons for Employers

  1. Award interpretation, coverage and classification is not an easy exercise, and it is important to get it right at the outset when employing staff to help avoid award contravention claims, including claims that employees have been underpaid.
  2. Do not assume that particular wording in awards, such as the use of the word “may”, convey optional rather than requisite skills and qualifications.
  3. If in doubt, seek legal advice regarding Award classifications early to help avoid legal claims in the future.

King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.