The Fair Work Commission’s removal of the AIRC Award Modernisation Website (and a solution that will help)

In 2021 the AIRC website (airc.gov.au) was removed from the internet in what appears to me to be a part of the Fair Work Commission’s redevelopment of its website.

The AIRC website contained all decisions, transcripts, submissions, research, exposure drafts of modern awards, and the parties’ draft proposals, that led to the making of modern awards.

Modern awards are important instruments. According to the Commission, 2.659 million employed Australians (23%) had their pay set by them as of 2022. ?

For me, the AIRC website was a resource that I often used in the course of advising upon the interpretation and application of modern awards. The best thing about the website was that it was logically ordered so that relevant material could be easily identified, accessed, and text searched.

The use of extrinsic material to the interpretation of awards

The debate over the legitimate use of extrinsic material for the interpretation of industrial instruments continues in the case law. When it comes to awards, my current favourite authority is Wheelahan J’s treatment of the issue in King [2020] FCA 1173.

Leaving aside that debate, courts and tribunals can still place an importance on the history of how an award came to be. As recently as 8 July 2022, a Full Court of the Federal Court in D&D Traffic Management [2022] FCAFC 13 at [47] endorsed what Street J said on this topic in 1929:

[I]t must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.

An examination of how the parties came to agree upon terms, and how an industrial tribunal came to arbitrate those terms, can be important to understand terms that might otherwise be unintelligible on an ordinary reading.

One can add to this what Burchett J said in Short (1993) 40 FCR 511 at 518:

The context of an expression may thus be much more than the words that are its immediate neighbours. … Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. …

Thus, it is sometimes important to examine the "industrial soil" to understand how it is that a particular concept or clause is to be applied in the industry or occupation for which a modern award applies.

The additional significance of extrinsic material to the interpretation of modern awards

In my view, there is an additional significance to extrinsic material when it comes to modern awards. This derives from appreciating how modern awards came to be made.

Modern awards made in 2009 and 2010 through a process that consolidated approximately 1,500 pre-existing awards into 122 awards. The legislative direction was to consolidate all of these instruments into a few, to be organised along industry and occupational lines. ?

The AIRC was duty bound to make modern awards:

• that were “simple and easy to apply”;
• that “reduce[d] the regulatory burden on business;” and
• that were “expressed in plain English and be easy to understand in structure and content”.

See sections 576A and 576W of the Workplace Relations Act 1996 (Cth) (as it then stood).

That was a mammoth task and a short deadline was imposed. In discharging this task, the AIRC was heavily reliant upon consensus between the industrial participants before it, and much of the consolidating and drafting that has come to appear in modern awards was prepared by industrial advocates.

Hence the need to have all of the material exchanged between the industrial participants and the AIRC, and the transcripts and decisions which identified the reasoning of all stakeholders.

A helpful solution to the issue: Internet Wayback Machine

A number of my instructors have complained to me about the removal of airc.gov.au. One can understand why that is so.

One of my very able colleagues at the bar has pointed me to the Internet Wayback Machine website, which has taken point-in-time images of what appeared on airc.gov.au such that the information on the website has been preserved.

You can access the Wayback images of the AIRC website at this link. Thankfully, through the Wayback machine, airc.gov.au lives for another day.

It is somewhat jarring to be retrieving Commonwealth documents through the Wayback website. I am used to courts and tribunals being able to take judicial notice of authoritative government websites, or judicial notice of documents that contain the Fair Work Commission’s seal (see section 651(5) of the Fair Work Act 2009 (Cth)).

I am not used to extracting government data off a Wayback machine. Let’s hope that airc.gov.au reappears for us practitioners in the future.

* Note: This post is not legal advice. Views expressed are my own.