T7291
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Police Citizens Youth Club Launceston (Inc.) HEALTH AND FITNESS CENTRES AWARD
Interpretation - Health and Fitness Centres Award - application of award to the Police Citizens Youth Club Launceston (Inc.) - declaration that the award does not apply to employees whose classifications appear in the Miscellaneous Workers Award - inappropriate to declare in respect of remaining activities of the Club - Australian Liquor, Hospitality and Miscellaneous Workers Union ordered to make application to vary the award to exclude those activities associated with Out of School Hours Care REASONS FOR DECISION This application was lodged by the Police Citizens Youth Club Launceston (Inc.) pursuant to section 43 of the Industrial Relations Act 1984 for interpretation of the Health and Fitness Centres Award. The applicant sought a declaration in relation to the application of the award to the operation of the club. The details of circumstances giving rise to the application were described thus:
Mr Holden, representing the Police Citizens Youth Club Launceston (Inc.) (the club) submitted that the club had sought guidance as to the award to apply to its employees without success and hoped that the Health and Fitness Centres Award was the appropriate award. The Scope clause of the award reads as follows:
Mr Holden said the club provided a service to young citizens of Launceston which was directed towards making them "better citizens". But predominantly, he said, the service provided was one of "physical exercise and sport". The club had administrative staff, on secondment and paid under "public service provisions". Two cleaners were engaged in accordance with the provisions of the Miscellaneous Workers Award, Mr Holden said. The Commission was informed that the employees, the subject of this application, were in the main young people (there were one or two adults) who worked as casual employees and who "supervise, instruct and coach young people in various sports and physical activities". These employees, about 30 of them, were engaged for up to 12 hours each per week. Mr Holden conceded that if it was found that the award applied to the club it could also apply to all employees including cleaners. Mr Cramp, the executive director and secretary of the club, described the work of the instructors or coaches as being "generally gymnastics based". The age of those attending the club ranged from 5 years to 18 years and some "two or 300 children" attended each week. The coaches and assistant coaches were all, apart from one, female, "from high school up to matriculation age and university". The club also had some voluntary coaches in Karate and Aikido. An "after school care program", run between 3.00 p.m. and 6.00 p.m. involved a number of children (up to 65 a day) of primary school age in indoor hockey, basketball and netball training and coaching. Approximately 20 children of high school age attended after 5.30 p.m. each day and a number of adults, approximately 10, were involved in the martial arts in that period. Other instructors were involved in trampolining, dancing, modern jazz ballet and classical ballet. There were two adult teachers involved in the dance activities. Other more structured sports such as "basketball, volleyball, badminton or netball" were due to recommence, having rectified a noise emission problem which had "stifled" the rosters. The club provided a paid umpire for those sports. Ms Shelley, for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the union), agreed that employees engaged as gymnasium instructors or fitness instructors would be covered by the Health and Fitness Centres Award. However she submitted that two other "classifications of employees" were more properly covered by other awards of the Commission. They were cleaners who were, she said, covered by the "common rule" Miscellaneous Workers Award, and those who work in the out of school hours care programs and vacation care programs who are, in Police and Citizens Youth Clubs throughout Tasmania, currently being paid under the Child Care and Childrens Services Award.2 In relation to the latter group, Ms Shelley said that one Police and Citizens Youth Club in the Hobart area regularly sought advice on wage rates from the union, as did the Out of School Hours Care Association, of which some Police and Citizens Youth Clubs were members. Ms Shelley said the after school hours care programs conducted by the club were, in fact, child care programs. Such programs generally were funded by the Commonwealth under the "Children's Services Program". Ms Shelley drew attention to the scope of the Child Care and Childrens Services Award which provides:
and the definition of "Child care establishment", which provides:
and the definition of out of school hours services, which provides:
Ms Shelley submitted that employees engaged in the provision of out of school hours care at the Launceston Police and Citizens Youth Club were therefore actually in the industry of providing child care as defined under the Child Care and Childrens Services Award. She concluded with the following statement:
Mr Holden contended that the club could be regarded as both a gymnasium and a fitness centre. He said physical activities were conducted for both children and adults although there was a "preponderance towards younger people". A "full weights gymnasium" was available which was the club's "main money earner". He said the club's activities were of a health and fitness nature; they were not those of a child care organisation. Mr Holden contended that none of the club's employees were providing care; he said they were coaching. None of the employees study a child care training course, nor had the club ever required its employees to achieve the qualifications required by the Child Care and Childrens Services Award. However he said some of the employees were qualified coaches, particularly in gymnastics, who, Mr Cramp confirmed, must achieve a certain coaching level required by "the federal gymnastics body". Mr Holden submitted that no proof had been produced to support Ms Shelley's contention that the Child Care and Childrens Services Award had applied in the past. In response to the submission by Ms Shelley that the after school hours program was conducted in a discrete area on the basketball courts, away from where the gymnasium instruction occurred, Mr Cramp submitted:
Mr Cramp said that a mix of adults and children come in all day long from 9.00 a.m. to 9.00 p.m. During the day schools bring class groups, whether it's primary school or high school or college, he said, and
And further he said:
Mr Cramp conceded the club engaged three or four people for the "after school care program" and at least one of those took a break and came back after 6.00 pm as a judo coach. On 23 March 1998, whilst in Launceston, I took the opportunity to inspect the club's operations at Abbott Street, Newstead, together with Mr Clifford of the Australian Liquor, Hospitality and Miscellaneous Workers Union and Mr Cramp. I found the inspections helpful. Finding Ms Shelley submits the club is involved in an Out of School Hours Care Program and that it receives money from the federal government for that involvement. Mr Cramp does not deny that is so and he claims that only three or four employees are engaged in that program. At least one of those employees, he says, does other work for the club. At the same time Mr Cramp and Mr Holden maintain, and I paraphrase their submissions, that the work done in the after school hours care program is of the nature of coaching and/or training in the sports and physical activities for which the club is designed and equipped. Having considered the submissions of the parties and had the benefit of an inspection of the club's premises, I am satisfied that the service the club provides through its gymnasium and other fitness facilities to its client group, including those of primary school age, is one which is encompassed within the industry of health and fitness. However there is no doubt that the club is involved in activities which attract funding from the Commonwealth as an Out of School Hours Care Services Program. As such it is arguable that for the reasons advanced by Ms Shelley, employees engaged for those programs are involved in the industry of providing care for children in child care establishments as defined by the Child Care and Childrens Services Award. Neither award makes reference to the other, although the Child Care and Childrens Services Award excludes the Independent Schools (Non-Teaching Staff) Award and the Disability Service Providers Award from its coverage. The scope of the Child Care and Childrens Services Award was determined with effect from 2 June 1989. I note that the awards excluded from coverage at that time were the Boarding Schools and Student Hostels Award and the Welfare and Voluntary Agencies Award. The scope of the Health and Fitness Centres Award was determined with effect from 14 May 1990. No reference to its possible impact on other awards was made at that time, nor has it been since, and for these current interpretation purposes the wording of the scope clause remains much the same to this date. An examination of the transcripts and reasons for decisions in respect of establishing the scope of these two awards gives no clue as to whether or not the parties ever considered the awards might be in conflict. Since the wording of the scope clause of each award suggests the operations of the club could be covered by one award or both, and I can extract no assistance from the extrinsic material, I am not prepared to speculate as to what was intended by those who drafted the awards in respect of those activities associated with after school care programs conducted by health and fitness centres. Consequently I am satisfied that a general declaration under paragraph (a) of section 43 (1B) of the Act would be inappropriate. As to those employees engaged as cleaners, I note that the scope of the Miscellaneous Workers Award applies to work performed by private employees classified as "Cleaner" and provides that the award shall not apply to a private employee who is engaged "within an industry where an award or registered industrial agreement applies containing a classification of employee embracing the same or similar work as envisaged by the scope and definitions set out in the (Miscellaneous Workers) Award. In the circumstances since the work of a cleaner is not provided for in the Health and Fitness Centres Award, the Miscellaneous Workers Award must apply to those employees. Accordingly
F D Westwood Appearances: Date and place of hearing: 1 Health and Fitness Centres Award |