The Case

King v Melbourne Vicentre Swimming Club Inc (2021)

Mr King commenced employment with Melbourne Vicentre Swimming Club Inc (the Club) as a swimming coach on 22 August 2006. His employment was terminated on 28 May 2018. Mr King commenced proceedings in the Federal Court, claiming he had been underpaid between 29 May 2012 and 28 May 2018.

Mr King argued his employment was covered by a modern award. He claimed the Fitness Industry Award 2010 applied to his employment, or alternatively, the Sporting Organisations Award 2010 or the Miscellaneous Award 2010. The Club defended the claim, claiming Mr King was too senior and too qualified to be covered by any of these awards.

Mr King reported to the Head Coach at the Club and on occasion acted in that position when the Head Coach was absent. Throughout his employment, Mr King also coached senior and mid-range level ability squads. Mr King did not coach the most senior squad. The highest level for a swim coach under the Fitness Industry Award 2010 is Level 4. Level 4 describes coverage as:

“(b) a coach of beginner swimmers (including mini and junior squads), being a holder of a current ASCTA Bronze Licence for Coaching or equivalent, who has:

• performed 12 hours per year of recognised workshops and 500 hours of coaching beginners, and attended a recognised seminar/conference within the past 12 months; or
• delivered 700 hours of coaching beginners.”

Mr King held a Silver Licence (the qualification beyond a Bronze Licence) and assisted in coaching senior swimmers including those who competed at state level.

Mr King argued that his all-inclusive salary did not compensate him for all entitlements under the relevant award.

At first instance, the Federal Court held that Mr King’s qualifications and duties meant that he was too senior to be covered by the Fitness Industry Award 2010, which it held would otherwise be the applicable award.

The Verdict

Mr King appealed to the Full Court of the Federal Court (FCFC). The FCFC held that:

• the Fitness Industry Award 2010 applied to Mr King’s employment;
• the Level 4 coverage description in the Fitness Industry Award 2010 outlined the minimum requirements, not the highest qualifications, required to be a Level 4, and having higher qualifications did not exclude Mr King from the Level 4 coverage; and
• the matter would be remitted to the Federal Court to decide the underpayment claim.

The Lessons

This case demonstrates the importance of understanding and correctly applying award coverage. The Fair Work Commission (FWC) has advocated in numerous decisions that many employees who have been paid and treated as non-award employees are, in fact, award-covered employees.

Don’t assume an employee is not covered by an award. If in doubt, speak to the Fair Work Ombudsman or obtain specific legal advice.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.