Did Mr King come within the specific requirements of cl B.5.3?
57 Since Mr King's employment by the Club needed to come within cl B.5.3 to be covered at Level 4, the next question is whether it did come within that clause. This gives rise to the second issue of construction which determines the outcome of the appeal: does that clause describe both minimum and maximum requirements for coverage at Level 4 or minimum requirements only?
58 The question of construction arises because there is no doubt on the facts that Mr King exceeded the qualifications and experience described in cl B.5.3(b). To recap, those qualifications were:
a coach of beginner swimmers (including mini and junior squads);
being a holder of a current ASCTA Bronze Licence or equivalent,
who has either:
o 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
o delivered 700 hours of coaching beginners.
59 To be covered, an employee must fulfil the first two of these requirements as well as either of the third or the fourth. The Club accepted that Mr King satisfied the last two (and as will be seen, that concession is relevant). The focus of the factual dispute was whether Mr King was a coach of beginner swimmers and whether he held a current ASCTA Bronze Licence or equivalent.
60 Mr King attempted to persuade the Court that he did, in fact, only coach beginner swimmers and that he was, in fact, the holder of a current Bronze Licence. But those attempts were, with respect, unconvincing. We have described some of the squads Mr King coached above. As we have said, they were broadly in the middle range of seniority. He coached children who were competing at a national level. Some of his swimmers qualified to compete in State championships. He also coached a senior squad of capable and competitive swimmers.
61 Mr King contended that there was no meaning of "beginner swimmers" that was generally accepted in the industry and so submitted that the term "means nothing". But the words must be given meaning and there is no difficulty in ascertaining what that meaning is. There is no need to go to dictionary definitions to conclude that a beginner is someone who is just starting out in a field of endeavour. In the present context, it would mean someone who is just starting to swim competitively and to receive training for that purpose. There was evidence that swimmers in "mini" or "junior" squads would fit that description.
62 It may be that the members of the MVC Junior Squad who, on Mr King's evidence, were starting to compete for the first time and were still learning correct swimming techniques met the description of "beginner swimmers". But on any view, the State and national championship swimmers whom he also coached did not meet that description. In terms of the level of proficiency and experience of many of his swimmers, Mr King exceeded the requirements of cl B.5.3(b). While he may also have coached some "beginner swimmers", that was not the major and substantial aspect of his work by which his award coverage falls to be determined: see e.g. Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]-[66] (Bromberg J).
63 As for the other essential criterion, an ASCTA Bronze Licence, Mr King submitted that a Bronze Licence was somehow included in the Silver Licence he in fact held. The evidence was that it is necessary to hold a Bronze Licence in order to apply for and obtain a Silver Licence, and it may be inferred that the skills required for the latter build on those required for the former. But it does not follow from those things that the holder of a current Silver Licence is also the holder of a current Bronze Licence. If a Silver Licence has been issued, it is unlikely that the Bronze Licence is current. When Mr King received his Silver Licence, he was told he could destroy his Bronze membership card and replace it with his new card.
64 There is no need to reach for strained interpretations and applications of the straightforward language of cl B.5.3(b). That is because we accept the broader submission that the provision only prescribes minimum requirements for a swim coach to be covered by Level 4. This follows, once again, from the architecture of the classification structure. We have already described significant aspects of that architecture in the preceding section. In substance, the Award contemplates escalating levels of qualifications and experience among swim coaches and others. Clause B.2.2(xiv) sets the minimum level of responsibilities and experience a swim coach must have to be covered by the Award, namely coaching beginner swimmers and holding a current ASCTA Junior Squad and Assistant Coach qualification or equivalent. These are to be understood as minimum requirements because there is no swim coaching role at Level 1.
65 The "ceiling" on the Level 2 swim coach role is then found in the "floor" for that role at Level 3. That is, if the employee holds a Bronze Licence or equivalent, he or she will have coverage at Level 3 and so no longer have coverage at Level 2. That is the only difference between the swim coach qualifications for Level 2 and the swim coach qualifications for Level 3. So once an employee acting in that capacity obtains his or her Bronze Licence, the employee becomes covered by Level 3.
66 The next level is 3A, which centres on a Fitness Industry AQF Certificate Level III. On appeal, Mr King did not press any argument that he had coverage under that level so it may be passed over.
67 The relevant requirements for Level 4, which is the one Mr King claims covered him, set the ceiling for Level 3. The licensing requirement does not change. It still refers to the holding of a current Bronze Licence. Nor does the level of swimmers coached change. It is still beginner swimmers (including mini and junior squads). What differentiates a Level 4 swim coach from a Level 3 one is, on the one hand, either the performance of 12 hours per year of recognised workshops, 500 hours of coaching beginners and attendance at a recognised seminar/conference within the past 12 months and, on the other, 700 hours of coaching beginners. Once any one of those criteria is satisfied, the employee passes into Level 4.
68 A number of textual and contextual indications support the view that those requirements do not provide an exhaustive description of the qualifications, coaching responsibilities and experience of a Level 4 swim coach so that if an employee exceeds those requirements he or she is not covered by the Award.
69 First, there is no express indication that the criteria are maximum requirements as well as minimum ones. And in contrast to boundaries between Level 2 and Level 3, and between Level 3 and Level 4, there is no higher level specific to swim coaches, the minimum for which sets a maximum for Level 4. So there is nothing in the Award which sets a "ceiling" for Level 4.
70 Second, some of the criteria in cl B.5.3 cannot sensibly be understood as maximum requirements. A coach who has delivered 700 hours of coaching beginners does not fall outside Level 4 as soon as he or she has delivered the 701st hour. That is why it is relevant that the Club accepted that Mr King did not fall outside cl B.5.3(b)(i) or (ii) (as distinct from the chapeau to cl B.5.3(b)). That acceptance is an inevitable result of acknowledging that those sub-paragraphs cannot sensibly be read as setting both minimum and maximum requirements. That begs the question of why the other requirements should be read that way.
71 Third, it is unlikely that a change in the employee's level for one of the two criteria in the chapeau would take the employee outside Level 4. Suppose, for example, that a coach has a Bronze Licence and coaches exclusively beginner swimmers including mini and junior squads. Suppose she obtains her Silver Licence, but continues to coach the same swimmers. From the point of view of her employer, the function she fulfils is exactly the same. It would be odd if she was no longer covered solely because she had a more advanced licence. One illustration of the oddity is that it would give the employee an incentive not to obtain a Silver Licence. It is difficult to see why either employers or employees in the swimming industry would want that.
72 Fourth, the way in which the Bronze Licence criterion is expressed - "being a holder of a current ASCTA Bronze Licence for Coaching or equivalent" - connotes that it is a minimum requirement only. It directs attention to the contingency that the person is not the holder of a Bronze Licence or any licence at all, or that the Bronze Licence is no longer current. There was evidence that the licences issued by ASCTA were accompanied by annual licence cards with expiry dates, with accreditation lost if the licence holder ceased to be a member of ASCTA. Evidently, the concern is that, if the qualification is lost, the employee would no longer be covered by Level 4 (and Level 3). That bespeaks a minimum requirement, not a maximum one.
73 Fifth, there is no apparent reason why the framers of the Award would have wanted swim coaches to be excluded because the substantial purpose of their employment is to coach swimmers who are no longer beginners. There is, for example, no basis in the evidence to think that a coach of middle-ranking competitive swimmers enjoys greater negotiating power, so that he or she does not need the protection of an award. There was evidence that swim coaches often have more secure employment than swim teachers, are often employed on a permanent (full time or part-time basis), and are usually ex-swimmers with a strong understanding of the industry. But there was no evidence that there was any difference in those respects between a coach of beginner swimmers and a coach of more advanced swimmers or between the holder of a Bronze Licence and the holder of a Silver or Gold Licence.
74 In truth, the evidence showed a degree of fluidity in the hierarchy of the industry which belies any suggestion that such differences entailed superior bargaining power. For example, the High Performance swim coach for the Club, Craig Jackson, gave evidence that a coach who ran a state development squad, containing swimmers moving from beginners to intermediate in their ability, would usually hold a Junior Squad or Assistant qualification or a Bronze Licence. On the Club's preferred construction, a person who has only the first of these qualifications, the lowest level offered by ASCTA, would lose coverage if he or she coached intermediate swimmers. It can be inferred from Mr Jackson's evidence about the various squads which the Club ran that most of the swimmers at a swim club are not beginner swimmers. If the intention behind the Award had been to exclude coaches who coach most of the swimmers at a club, one would expect it to have said so clearly.
75 Sixth, there is room in the Award for swim coaches who have achieved further career progression to have coverage. Clause B.8.1(b) confers Level 6 coverage on employees whose duties include "supervision, training and co-ordination (including rostering) of employees within their respective work area to ensure delivery of service". Similarly, cl B.9.1 and cl B.9.2 recognise that an employee who supervises, trains and coordinates employees and who has specialist knowledge and experience or formal technical qualifications or specialist post-trade qualifications, will have Level 7 coverage. These criteria can cover swim coaches with higher qualifications and experience in the field. That negates the submission made by the Club that reading Level 4 as setting out maximum requirements for coverage reflects the approach, not uncommon in industrial instruments, that, once an employee reaches a certain level of seniority, he or she no longer needs the protection of the instrument. If that submission were correct, a coach could pass out of coverage on obtaining a Silver Licence, say, only to recover it after reaching even higher levels of seniority within the industry.
76 For these reasons, we respectfully disagree with the primary judge that it is a strain to construe the text of the Award as bringing within its coverage coaches with higher qualifications or coaches of squads above the level of beginner swimmers. The Award does not expressly say that the requirements of a Bronze Licence and the coaching of beginner swimmers are both the "floor" to Level 4 and also its "ceiling". It does not set any express ceiling to Level 4 at all. And in light of the matters we have described, we do not consider that the Award sets such a ceiling by implication either. It is no strain on the language to construe the criteria as minimum requirements only, just like those in Level 2 and Level 3.
77 It follows that Mr King's Silver Licence and duties coaching intermediate and senior swimmers did not take him outside the coverage of Level 4. He fulfilled the minimum requirements for that level and did not fulfil the requirements for any higher level, so he was covered by Level 4 during the relevant period.