Modern award coverage; how to identify

This extract from a recent Federal Court decision in a general protections and award enforcement case sets out the principles which apply to determining whether and if so what modern award may cover particular employment.


The law

  1. Section 47(1) of the FW Act relevantly provides that a modern award applies to an employee and an employer if the award is in operation; covers the employee or employer; and no other provision of the Act provides, or has the effect, that the award does not apply to the employee or employer. A modern award does not apply to an employee (or an employer in relation to the employee) at any time the employee is “a high income employee” (s 47(2)). A reference in the Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment (s 47(3)).
  2. A modern award “covers” an employee or employer if it is expressed to do so (s 48(2)) unless the award has ceased to operate (s 48(4)).A reference in the Act to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment (s 48(5)).
  3. These provisions have not changed since the Act commenced in 2009.
  4. Thus, the resolution of the key question — which, if any, award applies — turns on the proper construction of the coverage clauses in the Health Award and the Hair and Beauty Award as they were cast at the time of the Massage Therapists’ employment with FTM.
  5. The principles of construction are well-established.
  6. First, although an award is not a statute, generally speaking the principles of statutory interpretation apply.
  7. An award is an instrument given the force of law. In effect, however, the FW Act, like its predecessors, “enacts by the prescribed constitutional method the provisions contained in the award”: Ex parte McLean (1930) 43 CLR 472 at 479 (Isaacs CJ and Starke J). As French J explained in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [52], as an instrument made by an authority (here, the Fair Work Commission), absent the contrary intention, the Acts Interpretation Act 1901 (Cth) applies to it as if it were an Act and as if each provision of the award were a section of the Act; expressions used in the award have the same meaning as the Act; and the award is to be read and construed subject to the Act and so as not to exceed the Commission’s power (see Interpretation Act, s 46). It follows, as French J went on to explain in Wanneroo at [53]:

The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words.  As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed.  Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction.  It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed.  It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’.  It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).

  1. Second, the principles expounded by Madgwick J in Kucks v CSR Ltd (1996) 166 IR 182 at 184 apply:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”

Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (14 October 2021) (Katzmann J)