2010 is year zero when using award history to interpret enterprise agreements

Courts and tribunals are regularly called upon to interpret words in an enterprise agreement, having regard to the award that it replaced. In OS ACPM Pty Ltd v Mining and Energy Union (2026), the Federal Court was tasked with interpreting clauses in an enterprise agreement, having regard to the relevant “context”, being the award history, arguing this revealed the intent or purpose of the provisions.

The Court in this decision observed that context is not an end in itself, and the language of the agreement is more important. The intention must be ascertained from the text of the agreement in light of context and purpose. You cannot assume that an agreement sought to preserve industrial practices adopted prior to the commencement of the agreement.

The Court observed that the process by which a modern award has evolved is very different to the way awards were made prior to the Fair Work Act 2009 (Cth) (FW Act). Before 2010, awards were made to resolve an industrial dispute. Modern awards commenced on 1 January 2010 following the federal tribunal undertaking the monumental task of consolidating thousands of awards into 122 modern awards.

The FW Act requires that a modern award include terms specifying or providing for the determination of the ordinary hours of work for each classification under the award. The former modern award provisions did not require such terms.

Given the statutory overlay of the award modernisation process, the search for the “intention” in the context of the consolidation of many awards, involving many industries, parties, and prior custom and practice, can be difficult if not impossible. To the extent the Commission gave reasons as part of the modern award process, they were often limited given the task being undertaken.

You must exercise caution when looking back at pre-award modernisation awards and submissions made to the Commission and extrapolating that such an “intention” was thereafter adopted as part of the award modernisation process.

Modern awards are made and varied by the Fair Work Commission. Its President is a judicial officer, and many of its members have been qualified lawyers and are otherwise drawn from a wide pool of professionals with expertise in the field of industrial and workplace relations. It follows that, unlike in the past, it should not be assumed that modern awards have been drafted by lay persons.

Care should be exercised in assuming, without good and principled reason, that the rights, entitlements and duties of employers and employees under a “modern” award made by a contemporary industrial tribunal should be determined by practically minded employers and employees having regard to the annals of industrial arbitration reports of industrial awards and instruments made under entirely different legislative schemes.

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