Federal Court of Australia

Australian Workers’ Union v Chevron Australia Pty Ltd [2026] FCA 1492

ORDERS

THE COURT NOTES THAT:

A.    The Policy is “Policy 219: Rotational Benefits Policy” referred to in paragraph 4 of the amended statement of agreed facts.

B.    The Field Loading Allowance is the allowance paid to select employees of the respondent referred to in cl 6.0 of the Policy.

C.    The Transport Allowance is the allowance paid to select employees of the respondent referred to in cl 7.0 of the Policy.

D.    Protected industrial action refers to the work stoppages taken by certain employees from 8 to 21 September 2023 as detailed in paragraph 9 of the amended statement of agreed facts.

E.    Relevant Employees are those defined in paragraph 3 of the amended statement of agreed facts.

THE COURT ORDERS THAT:

1.    The separate questions on the issue of liability be answered as follows:

(a)    Did the respondent’s conduct in making deductions from each Relevant Employee’s pay of amounts for the Field Loading Allowance in respect of the periods of protected industrial action contravene section 323(1) of the Fair Work Act 2009 (Cth)? No.

(b)    Did the respondent’s conduct in making deductions from each Relevant Employee’s pay of amounts for the Transport Allowance in respect of the periods of protected industrial action contravene section 323(1) of the Fair Work Act 2009 (Cth)? Yes.

2.    The matter be listed on a date to be specified for further hearing as to the consequential orders that should be made in light of my answers to those questions as well as the question of costs.

3.    The parties provide short minutes of order to my Chambers providing a timetable for the matters identified in order 2 within 7 days of this judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LENEHAN J:

Introduction

1    Chevron Australia Pty Ltd (Chevron), the respondent, employs individuals to conduct oil and gas operations on several sites in the northwest region of Western Australia. In 2022 and 2023, Chevron and the applicant, the Australian Workers’ Union (AWU) engaged in enterprise bargaining regarding these employees under the framework established by the Fair Work Act 2009 (Cth) (FWA). AWU was the bargaining representative for some of the employees. During this bargaining period, employees represented by AWU took protected industrial action, including work stoppages, under Division 2 of Part 3-3 of the FWA. This industrial action occurred from 8 to 21 September 2023 (the Relevant Period). It is not in dispute that this industrial action was protected industrial action under s 347(1)(b)(iii) of the FWA.

2    Some Chevron employees were entitled to allowances which were paid in addition to ordinary wages. The allowances payable pursuant to Chevron’s “Policy 219: Rotational Benefits Policy” (the Policy) were:

(1)    a Field Loading Allowance paid in monthly instalments, paid to employees assigned to Remote Work Locations (as defined in the Policy, outlined at [146] below) for periods of three months or more; and

(2)    a Transport Allowance paid to employees monthly in respect of travel costs they incur travelling from their place of residence to designated points of assembly from which Chevron transports them to the Remote Work Locations.

(Together, the Allowances).

3    The Eligible Employees entitled to the Allowances were those who were “rotational employees” assigned by the respondent to work at a “remote work location” for a period of three months or more. The Relevant Employees were those Eligible Employees engaged by the respondent to work at certain of the Remote Work Locations who took the protected industrial action I have referred to above during the Relevant Period.

4    Chevron made deductions from the wages of the Relevant Employees in putative compliance with s 470 of the FWA, including deductions from the Field Loading Allowance and the Transport Allowance. These deductions were determined by applying a proportionate deduction to these amounts by reference to the time a Relevant Employee had taken protected industrial action by way of a work stoppage on a particular day. The AWU alleged that that conduct contravened s 323 of the FWA. I have set out below the relevant terms of those provisions and other provisions of the FWA.

5    Each Eligible Employee was employed via a written contract of employment. Included as an attachment to the Amended Statement of Agreed Facts (ASAF) were copies of example contracts from 2014, 2018 and 2022 (the Example Contracts). The parties agreed that each Eligible Employee was employed pursuant to a contract of employment on substantially similar terms to the Example Contracts. I will return to the specific terms of the Example Contracts in further detail below.

6    The Example Contracts refer expressly to Chevron’s workplace policies, including the Policy. As I will explain further below, it was the Policy, rather than the Example Contracts, that dealt with the detail of the Allowances.

7    On 25 November 2024, the applicant commenced these proceedings and sought the following relief:

(1)    an order pursuant to ss 545 and 547 of the FWA requiring Chevron to pay compensation and interest to various employees from whom it failed to pay in full (via the unauthorised deduction of Allowances) in contravention of s 323 of the FWA; and

(2)    an order pursuant to s 546 of the FWA imposing a pecuniary penalty on Chevron in respect of this contravention, payable to the AWU per s 546(3)(b).

8    AWU contended it had standing to apply for those orders as an organisation of employees eligible to affect their industrial interests. I did not understand this to be contested by the respondent. The hearing on 29 April 2026 was confined to dealing with the questions necessary to determine the issue of liability only (by reason of orders made pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) on 1 May 2026). That involved asking, in respect of each allowance, whether Chevron’s conduct contravened s 323(1) of the FWA. I have answered those questions below. The question of any consequential orders will fall for consideration in light of my answers to those questions on liability and will be determined after hearing further from the parties.

9    The critical issue in this matter is whether the Allowances were payments of a kind captured by s 470 of the FWA, which would have had the effect of precluding Chevron from paying them.

The relevant statutory framework

10    The objects of the FWA appear in s 3. They relevantly include:

… provid[ing] a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by [amongst other things] …

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action …

11    As I have said, AWU alleges that the deductions constituted a contravention of s 323 of the FWA. This section requires an employer to pay “amounts payable to the employee in relation to the performance of work” in full, unless a deduction is authorised by s 324. Section 323 of the FWA is a civil remedy provision – a person who breaches it is liable to pay a civil penalty.

12    It provides as follows:

323 Method and frequency of payment

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

(2)    The methods are as follows:

(a)    cash;

(b)    cheque, money order, postal order or similar order, payable to the employee;

(c)    the use of an electronic funds transfer system to credit an account held by the employee;

(d)    a method authorised under a modern award or an enterprise agreement.

(3)    Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

13    In Euro Car Parts Pty Ltd v Cannon (2024) 304 FCR 349 (Euro Car), Halley J held that s 323 creates an independent “statutory obligation to pay an amount in full, in money and at least monthly”. In Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107, the Full Court of this Court approved the approach taken in Euro Car and added at [87] that:

A review of the text, context and purpose of the provision reveals that it confronts the mischief of ensuring that employees are not paid in kind but in full and have certainty as to the frequency of payment.

14    An employer may make a deduction from an amount payable to an employee under s 324, which provides:

324 Permitted deductions

(1)    An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

(a)    the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or

(b)    the deduction is authorised by the employee in accordance with an enterprise agreement; or

(c)    the deduction is authorised by or under a modern award or an FWC order; or

(d)    the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

Note 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:

(a) forgo an amount payable to the employee in relation to the performance of work; but

(b) receive some other form of benefit or remuneration;

will be permitted if it is made in accordance with this section and the other provisions of this Subdivision.

Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.

(1A) However, an employer must not deduct an amount under paragraph (1)(a) if the deduction is:

(a)    directly or indirectly for the benefit of the employer or a party related to the employer; and

(b)    for an amount that may be varied from time to time;

unless the deduction, if it were a deduction referred to in subsection 326(1), would be a deduction made in circumstances prescribed under subsection 326(2) to be reasonable.

(2)    An authorisation for the purposes of paragraph (1)(a):

(a)    must specify:

(i)    for a single deduction—the amount of the deduction; or

(ii)    for multiple or ongoing deductions—whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and

(aa) must include any information prescribed by the regulations; and

(a)    may be withdrawn in writing by the employee at any time.

(3)    Any variation in a specified amount of a deduction must be authorised in writing by the employee.

15    The respondent contends that it was precluded from paying the Allowances by the operation of s 470 of the FWA, which relevantly provides:

470 Payments not to be made relating to certain periods of industrial action

(1)    If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

(2)    However, this section does not apply to a partial work ban.

16    Section 470 has not been amended since the enactment of the FWA.

17    Section 471 deals with the subject matter referred to in s 470(2) (a “partial work ban” – see also the definition in s 470(3)) and relevantly provides:

Payments relating to partial work bans

…

Employer gives notice of non-payment

(4)    If:

(a)    an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b)    the industrial action is a partial work ban; and

(c)    the employer gives to the employee a written notice stating that, because of the ban:

(i)    the employee will not be entitled to any payments; and

(ii)    the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

…

The industrial action period

(5)    The industrial action period is the period:

(a)    starting at the later of:

(i)    the start of the first day on which the employee implemented the partial work ban; or

(ii)    the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b)    ending at the end of the day on which the ban ceases.

…

18    Sections 470 and 471 appear in Chapter 3, Part 3-3, Division 2 of the FWA, titled “Protected Industrial Action”.

19    “Industrial action” is defined in s 19(1) of the FWA as:

Industrial action means action of any of the following kinds:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d)    the lockout of employees from their employment by the employer of the employees.

20    Section 473 proscribes an employee from accepting a payment from an employer if the making of that payment would contravene s 470. It also proscribes an employee from asking an employer for such a payment.

The respective cases

21    The applicant claims that by failing to pay the Allowances in full, the respondent has breached s 323 of the FWA. Further, the applicant alleges that as these contraventions consist of a single course of conduct within the meaning of s 557 of the FWA, they amount to one single amalgamated contravention.

22    Chevron advances two primary defences.

23    Firstly, that the deductions were authorised as s 470(1) of the FWA prohibited Chevron from paying Relevant Employees their entitlement to the Allowances. As Senior Counsel for the respondent, Mr Dalton KC, submitted, s 470(1) acted as a “bar” which prevented the obligation to pay the amounts payable under s 323 from arising. Put another way, s 470(1) operated prior to s 323.

24    Secondly, and in the alternative, that as Chevron was prohibited from paying the Allowances by s 470(1), the deductions it took out of the Relevant Employees’ payments were authorised by a law of the Commonwealth under s 324(1)(d) of the FWA.

25    The respondent submitted that if either of those alternative defences were established, Chevron did not contravene s 323 of the FWA. As Mr Dalton accepted, it was largely immaterial to the outcome which of these two constructions the Court adopted. On either view, the principal issue for the purposes of these proceedings concerns the construction and potential application of s 470(1).

Prior authority and the arguments presented here

26    The High Court considered s 470 in Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619. The Court described the effect of the section as one which limits voluntary conduct and sanctions that limitation by the imposition of a penalty. Its text must be read in light of the statutory object, expressed in s 3(f) of the FWA, of providing “clear rules governing industrial action”: at [43]. Importantly, the Court at [40]-[41] emphasised the difficulty that arises when attempting to construe a statute by reference to the object or purpose of legislation in circumstances where the text involves a compromise between competing interests. It is an error, particularly in those circumstances, to proceed on the basis that the legislature has pursued “its purposes at all costs” (at [41] referring to the point made in Rodriguez v United States (1987) 480 US 522 at 525-526 that no legislation does so). In such a case, the question is not: what was the purpose or object underlying the legislation? The question is, how far does the legislation go in pursuit of that purpose or object (at [40])?

27    It was thus in a circumspect tone that the High Court then noted at [42] that interpreting the section in light of its purpose must be done carefully, observing that:

One may accept that the purpose of s 470(1) is to allocate the economic loss attributable to industrial action as between employers and employees by requiring employees to bear the burden of the loss of earnings occasioned by the industrial action and the employer to bear the burden of the loss of production. But it is quite plain that the provision does not comprehensively address the allocation of all the costs of industrial action. Nor does it prohibit performance of the entirety of the obligations of an employer to its employees for the duration of the industrial action.

(Emphasis added.)

28    Rather, as the Court said at [43], the provision is directed at a particular kind of transaction with two key features: a “payment to an employee” which is “in relation to the total duration of the industrial action” on a particular day.

29    As to the first textual feature, the Court held that s 470(1) was properly construed as referring to a payment of money; the provision was not engaged by the transfer of “just any economic benefit” by an employer to an employee during a period of protected industrial action (at [49]). That was of importance to the resolution of that case, which concerned benefits in the nature of on-site accommodation. In contrast, in the current matter there can be no dispute that the Allowances were “payments” to employees for the purposes of s 470(1).

30    It is the second textual feature that arises for consideration here. The Court said that the phrase “in relation to the total duration of the industrial action” involved a prohibition upon the making of a “payment” to recoup, in whole or in part, what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period (at [50]). That is, s 470(1) involves a form of counterfactual.

31    Expanding on that, their Honours said this at [51]:

An employee who engages in industrial action does not, for the duration of the industrial action, render the services on which the entitlement to remuneration commonly depends. But to say that is distinctly not to say that entitlements of an employee which are dependent on the subsistence of the contract of employment, rather than the actual performance of services, even if sensibly described as “payments”, are “payment[s] … in relation to the total duration of the industrial action”. To speak of “a payment to an employee in relation to the total duration of the industrial action” is to speak of a period of employment in respect of which no remuneration is earned by the employee. The concern addressed by s 470(1) of the Act is that the taking of industrial action must not be the occasion of a payment by the employer.

(Emphasis added.)

32    Picking up the point about the error in approaching construction on the assumption the legislature has pursued “its purposes at all costs”, the first emphasised passage makes plain that one does not read s 470(1) as addressed to all entitlements (in the nature of “payments”) which are “dependent on the subsistence of the contract of employment”. Rather (see the second emphasised passage) there must be a relationship or connection between the particular payment and a particular time period, being the “duration of the industrial action”. As I will discuss further below, the first emphasised passage further indicates that the requisite connection is a connection between the entitlement to the relevant payment and the performance of services during the “duration of the industrial action”.

33    Their Honours went on to support that analysis by reference to the legislative history of the provision, which indicated that the real purpose of the provision was to prohibit “strike pay”, that is, payments by an employer to “make up”, in whole or in part, wages not earned by the employee during the period of industrial action (at [52] and see also [53]-[54]). Their Honours also emphasised this point at [60]:

Whether the prohibition is apt to capture any given payment may depend on the circumstances of the case. For example, a payment by way of a gift might be caught if the circumstances were such as to show that it was made by way of recompense for wages not earned. It is not necessary or desirable to attempt an exhaustive statement of those circumstances.

34    Applied to the facts before them, the entitlement to accommodation was neither a “payment”, nor was it provided in relation to the non-performance of work during the period of industrial action. As to the latter, their Honours observed at [61] that the provision of the accommodation “was a benefit to which the relevant employees were entitled upon attending at the work site unless and until they were directed to return to their usual place of residence”.

35    Both parties agreed that the essential statement of the test in Mammoet (2013) 248 CLR 619 to determine whether a payment was captured by s 470(1) appears at [50]-[51].

36    The applicant’s argument on this point started from the proposition that Mammoet (2013) 248 CLR 619 holds that the limitation selected by s 470(1) is a “temporal” one. The term “temporal” was deployed as a label to describe the observation in Mammoet that the provision requires a connection between the payment and the “total duration of the industrial action” on a day. By describing that analysis as “temporal” the applicant leapt to the conclusion that that relationship is to be understood very narrowly: limited to what were described as “direct time earnings” which I understood to mean payments that were “directly attributable” to particular hours which employees worked – or rather, would have worked, but for the industrial action.

37    As the respondent observed, those flourishes do not have any basis in the statutory text. Nor are they to be found in the discussion in Mammoet (2013) 248 CLR 619 (construing that text in an authoritative fashion), upon which both parties relied.

38    In my view, the essential vice in the applicant’s argument on matters of legal principle lies in the approach of loosely labelling the relevant test as “temporal” and then throttling the resulting construction process such that it is approached in an artificially narrow fashion (ie only a very strict or literal “temporal connection” will suffice). That is not what was said by the High Court in Mammoet (2013) 248 CLR 619 or by this Court in the authorities which have since applied it. It is ultimately a distraction from the correct approach.

39    That is usefully illustrated by the facts and reasoning in Community and Public Sector Union v Commonwealth [2019] FCA 975 (CPSU). Neither party submitted that that decision was plainly wrong or ought not to be followed.

40    In CPSU [2019] FCA 975, the relevant issue was whether a “seagoing allowance” paid to employees of the Australian Customs and Border Protection Service under an enterprise agreement in compensation for the difficulty and inconvenience of spending long working hours at sea was captured by s 470(1). In an argument that bears some (broad) similarities to the argument presented by the applicant before me, the applicant in that case placed significant reliance on the words “the actual performance of services” (emphasis added) in the passage from Mammoet (2013) 248 CLR 619 at [51] (extracted above). That, it was said, pointed to a narrow understanding of the allowances caught by s 470(1) – requiring a connection between the allowance and the actual performance of a duty. That differs from the specific submission advanced here, but, as will be seen, there were some similarities in the way it was put.

41    The allowance in question was paid to those who were assigned to a position on a seagoing vessel: at [21]. It was calculated as a percentage of the employees’ annual salary, payable fortnightly in accordance with a formula, regardless of the number of days of sea duty actually performed (see at [23], which reproduces clause 22.8 of the relevant enterprise agreement). The nature of the allowance was described by O’Callaghan J in these terms at [20]:

Working for long hours at sea, policing Australia’s maritime border (with all that entails), is obviously a significant disability. It is “in recognition of the special duties performed” that the Allowance is paid, as well as the fact that the overtime penalty payments, shift penalties, and other disability allowances which would normally apply will not be paid ...

42    The applicant in that case emphasised the following features, amongst others, in contending that there was a lack of sufficient connection between the seagoing allowance and the “actual performance of duty”:

(1)    the seagoing allowance is an annual allowance, which suggests there is no particular connection to the number of hours performed in the year;

(2)    the seagoing allowance was paid “regardless of the number of days’ sea duty actually performed”, and was paid when employees were not performing work because they are on leave; and

(3)    if the seagoing allowance depended on actual hours performed in a pay period, one would expect to see a mechanism for making adjustments to the allowance for time not worked (and there was no such mechanism): see [28] of O’Callaghan J’s reasons.

43    It will be apparent that the submission as developed before O’Callaghan J morphed into a submission about whether the seagoing allowance was closely related to the number of hours worked. The applicant here puts a similar argument.

44    O’Callaghan J rejected the asserted significance of the phrase “the actual performance of services” used in Mammoet (2013) 248 CLR 619 at [51]. His Honour said that phrase was used in that paragraph in contradistinction to “entitlements of an employee which are dependent on the subsistence of the contract of employment”, such as accommodation. That did not state the relevant test. The test to be applied rather required consideration of whether the payment is “a payment to recoup, in whole or in part, what would have been payable in relation to the time during which the employee[s] engaged in industrial action had the employee[s] worked during that period”: at [40], referring to Mammoet at [50].

45    Applying that test, O’Callaghan J noted that the seagoing allowance was expressly paid in recognition of the “special duties” performed by employees and in lieu of “overtime shift penalty, restricted duty or disability allowance provisions” where those would normally apply: see [41]. His Honour further observed that payments to employees

(1)    who performed overtime or shift work;

(2)    who were directed to remain contactable and available to perform extra duty outside their ordinary hours of work; or

(3)    who suffered a recognised disadvantage or disability in the performance of their work;

were obviously payments that, if withheld, “would have been payable in relation to the time during which the employee[s] engaged in industrial action had the employee[s] worked during that period”: see [42]. His Honour held that such payments do not lose that character when they are consolidated into a single commuted allowance: ibid.

46    The point to emphasise for present purposes is that none of that suggests any narrow requirement that the allowance be “directly attributable” to the particular hours which the employees would have worked, but for the industrial action.

47    A similar point can be made by reference to the decision of the Full Court of this Court in Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd (2025) 307 FCR 478, where Katzmann J, Raper J and Kennett J each wrote a separate judgment but reached the same result.

48    The relevant enterprise agreement allowed employees who had worked more than an annual threshold of hours (1500 or 1560 depending on the worksite) to be entitled to 30 hours of pay at an “ordinary” rate (ordinary rate component), plus an applicable “overtime” rate for the shifts they actually work (shifts worked component). The somewhat unusual nature of those payments was explained by Kennett J at [157]:

The Agreement clearly seeks to reconcile the employers’ wish to have a pool of skilled workers available to work when required with their employees’ need for a regular income. In this regard it addresses a feature of work on the waterfront that was historically a source of great hardship. That accommodation is manifested in the Roster Rules in Schedule 4 to the Agreement.

(a)    Rule 1 says that employees “shall work 1560 hours annually”, and “are available to be allocated to shifts in accordance with the roster”. Rule 2 says that the annual hours are “based on a 30-hour week”.

(b)    Rule 3 provides that employees are to “be paid 30 hours at the Level 1 ordinary rate each week”, plus any higher duties payments, shift premiums and various other add-ons for the shifts actually worked. Employees who are rostered on for less than 30 hours in a week will therefore still receive the basic payment of 30 hours at the Level 1 ordinary rate. On the other hand, employees who are rostered on for more than 30 hours in a week will still only receive the same basic payment. (In both situations employees will also be paid any higher duties and other add-ons applicable to the shifts that they actually work).

(c)    Employees who reach a total of 1560 hours before the end of a year are to be paid, for the remainder of the year, pursuant to Rule 4... Workers in this position have been underpaid, in the sense that they have been working more than 30 hours per week but only being paid their basic rate for 30 hours. They continue to be paid 30 hours per week at the Level 1 ordinary rate (the ordinary rate component) and they also receive “overtime” rates for the shifts that they actually work (the shifts worked component).

49    Each of the workers to whom the dispute related had reached a point where Rule 4 in Schedule 4 to the Agreement applied to them (ie they had reached a total of 1560 hours for the year). The essence of the ensuing dispute was whether the employer was required to pay employees the ordinary rate component even when those employees engaged in protected industrial action.

50    On appeal, the ultimate argument of the appellant was that the payment of the ordinary rate component in those circumstances was not conditional on attending allocated shifts or being available for work. It was said to be a payment for work already done, and therefore not a payment “in respect of” the “duration” of the relevant industrial action: see eg [156] (Kennett J).

51    After explaining the nature of the payments at [157] (the passage I have reproduced above), Kennett J accepted that “[i]n a conceptual sense … it can be said that the ordinary rate component represents payment for work already done”. His Honour further accepted that an employee who is subject to Rule 4 (ie has reached a total of 1560 hours before the end of a year) is entitled to be paid that component for a week even if they are not rostered on for any shifts in that week. But his Honour did not accept the proposition that the payment of the ordinary rate component was not conditional on attending allocated shifts or being available for work (for reasons he explained by reference to terms of the enterprise agreement and its context). It was that matter which his Honour considered to be decisive at [166]-[167]:

… The entitlement of the workers to receive both components of their pay was dependent on them working their allocated shifts. Both components are therefore part of “what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period” (referring to Mammoet at [50]), payment of which was precluded by s 470(1) …

The formulation in Mammoet suggests that the connection required by the statutory phrase “in relation to the total duration of the industrial action on that day” is a connection between the entitlement to the impugned payment and the performance of work (or availability for work) during the “duration of the industrial action” …

52    Again, that approach is at odds with the applicant’s contention before me that it is necessary to establish some close nexus between the allowance and the particular hours which would have been worked, but for the industrial action. It will also be apparent that his Honour understood the critical passage from Mammoet at [51] in the same manner as I do.

53    Katzmann J appears to have applied a substantially similar analysis (at [78]-[82]), albeit in different terms. Her Honour and Kennett J also seem to have approached the question of the construction of the agreement and the relevance of the common law principles to that process differently – see Katzmann J at [49]-[76] and Kennett J at [162]-[165] and see further below.

54    Raper J applied a distinctly different, and broader, approach.

55    At [117], her Honour said that the use of the words “payment to an employee” indicates a parliamentary intention to “cover a broad range of entitlements which include wages, incentive-based payments and bonuses, loadings, monetary allowances, overtime and leave payments. There are aspects of many of each of these entitlements that arise from (or in combination of) past, current and future performance of work”.

56    Building on that, her Honour drew attention to other textual indicia of textual breadth in the statutory design (at [120]-[121]):

Parliament's use of the word “payment” and omission of the words “in relation to the performance of work” [which is included in s 323] coheres with its choice of the connecting phrase “in relation to” in the provision. The deployment of this phrase was deliberate and is necessarily of broad import. Such an expression is not to be regarded as ambiguous but rather of indicating a connection or relationship between one subject and another, “capable of a wide range of applications”: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414 at [106].

This breadth ensures that s 470(1) confronts the mischief sought to be addressed by the section namely that the taking of industrial action must not be the occasion of a payment by the employer: Mammoet [51]. The section prohibits strike pay and therefore, payment for the occasion of non-performance of work.

(Original emphasis.)

57    Applying that analysis, her Honour held that it was unnecessary to resolve the question of construction of the agreement addressed by other members of the Full Court. It was unnecessary to do so because, in her Honour’s view, it was sufficient that the amounts in issue had a particular relationship to the relevant week of the industrial action. Her Honour said this at [125]-[126]:

… The payment was dependent on when the employee was to work and the particular rate affixed to that time period. There was a fundamental, and necessary connection between, the payment and the week for which it was to be paid. Regardless of whether one accepts the Union’s construction that the employees were entitled to be paid 30 hours at the Level 1 rate whether they attended work or not, it is clear that the “payment” was a weekly rate determined by the roster, by whether the employee had achieved 1560 annual hours (which would determine whether the weekly rate was stipulated by Roster Rule 3 or Roster Rule 4) and the work of that week.

The “payment” was in relation to the relevant week and therefore if paid, was a payment to recoup, in whole or in part, what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period …

58    The other two members of the Court did not express a view on that issue – indeed, Kennett J expressly noted at [167] that he was not doing so, stating that “I prefer not to express any conclusion as to whether s 470(1) applies more broadly, so as to capture an amount that becomes payable to an employee on the day of the industrial action but does not relate to the performance of work on that day”.

59    Neither party suggested that I needed to resolve that issue for present purposes, although one submission made by Chevron might be taken to implicitly raise that issue (I will return to that further below). To the extent it does arise, I prefer Kennett J’s formulation at [167] as best capturing what both parties agreed was the essential reasoning in Mammoet (2013) 248 CLR 619; that is, there must be a connection between the entitlement to the impugned payment and the performance of work (or availability for work) during the “duration of the industrial action”. That can be seen in the distinction that the Court in Mammoet drew at [51] (to which I have drawn attention above) between “entitlements of an employee which are dependent on the subsistence of the contract of employment, rather than the actual performance of services”. That is the distinction the Court applied in that case at [61]: “[t]he provision of that accommodation was a benefit to which the relevant employees were entitled upon attending at the work site unless and until they were directed to return to their usual place of residence” (see also the Court’s reasoning on the notice of contention at [69], [72]). The happenstance that a particular allowance or payment falls due in a particular week or on a particular day that coincides with industrial action is not enough in my view. That would, for example, capture accrued bonuses to which an employee was already entitled, with no connection whatsoever to the period of industrial action (save for the coincidence that they fell due during it), or even salary for previous periods of work which happened to become payable during the period of industrial action.

60    To the extent such a construction is said to be justified by reference to the object of certainty or clarity (Sydney International (2025) 307 FCR 478 at [118]-[119]) it overlooks the point I have noted above by reference to Mammoet (2013) 248 CLR 619 at [40]-[41] – that is, no statute pursues each of its various purposes at all costs. In any event, no particular difficulty of that nature arises from the construction I prefer (being the construction in fact applied – without apparent difficulty – in Mammoet, in CPSU [2019] FCA 975 and by a majority of the Court in Sydney International).

61    But I doubt that Raper J intended to say that it was in fact sufficient for the purposes of s 470(1) that a particular payment falls due in a particular week or on a particular day that coincides with industrial action – rather, it seems that her Honour may have seen a closer connection between the payments and the period of industrial action on the particular facts before her (see again the words “the payment was dependent on when the employee was to work and the particular rate affixed to that time period” (original emphasis) and her Honour’s reference to a “fundamental, and necessary connection between, the payment and the week for which it was to be paid” at [125]). No such connection of that nature was relied upon here by the respondent.

62    What is perhaps more important – and what I understood the respondent sought to emphasise from Raper J’s judgment – is that her Honour’s reasoning rebuffs the applicant’s contention that the engagement of s 470(1) requires a close nexus between the allowance and the particular hours which would have been worked, but for the industrial action (the “direct time earnings” submission). As I have said, so do the reasons of Katzmann J and Kennett J.

Was section 470(1) of the FWA engaged here?

63    In contending that the Allowances engaged s 470(1), the respondent relied upon various features of the Example Contracts, in addition to terms of the Policy itself. I will start by analysing the contractual arrangements, which the respondent contended supported its submissions in respect of both Allowances.

Contractual arrangements

64    The respondent argued that each of the Example Contracts contained language that tended to suggest that, “properly construed, the total remuneration, including each of the Allowances, constitutes compensation for all hours worked, including reasonable additional hours required of the employee”.

65    That submission seemed to involve these steps.

66    Firstly, the Allowances are to be understood as “remuneration” in the ordinary sense of that term – that is, as being the reward paid or provided in return for the performance of a service or for work done: Australian Education Union v Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461, [36]-[37] (Bromberg J). That, as his Honour there observed, may include a “mix of remunerative benefits”.

67    Secondly, if that is right, it tends to indicate that there is an element of “reciprocity” between those payments and the performance of what was described in Chevron’s oral submissions as the “obligation of the relevant employees, as fly-in fly-out workers on regular swing rosters at [remote locations], to be ready and willing to mobilise and to work their roster when on swing”. In aid of that submission, the respondent drew (in particular) upon what has been described as a “common law principle” which requires some further explanation.

68    The so-called “principle” is discussed in authorities including Coal and Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383 (MacPherson), where three members of this Court (Marshall and Cowdroy JJ at [18]-[19] and Buchanan J at [81]-[82]) referred to the following statement by Rogers J in Cosmore v Public Service Board (NSW) (1986) 10 NSWLR 587 at 595:

Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.

69    In the first instance decision in Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd (2024) 332 IR 36, Rangiah J applied that “principle” to the construction of the enterprise agreement in issue there, observing that the agreement did not indicate any “intention to abrogate” this “common law principle”. I share Kennett J’s reservations about some aspects of that approach, which his Honour put in this way in his reasons in the appeal in Sydney International (2025) 307 FCR 478 at [164]-[165]:

For my own part, I have some doubt as to whether “common law principle” is the best label for what is going on here (at least if that “principle” is suggested as a freestanding rule that needs to be “abrogated”). The employment relationship is fundamentally contractual and often overlaid by statutory requirements and statutory instruments such as the Agreement. The preferable explanation may be that the courts routinely imply, as a contractual term or a term of the relevant instrument, reciprocity between the entitlement to remuneration and the performance of the employee’s duties. On that understanding, the point is one of construction. As Buchanan J put it in MacPherson at [66]:

Normally, the exchange of work for pay represents the fundamental consideration provided by parties to a contract of employment.

This observation does not, however, point to any material error on the part of the primary judge. The case law discussed in MacPherson points to a common (if not universal) understanding of the employment relationship that supports the construction of the Agreement outlined above. In the light of that common understanding, if the parties to an Enterprise Agreement intended to provide for an employment relationship in which entitlement to remuneration continued while attendance at work became optional, that would be expected to be made clear.

(Emphasis added.)

70    The respondent accepted that that was a correct statement of the law and I agree. Although Katzmann J expressed her reasoning somewhat differently (and preferred to continue to use the term “common law principle”), I would understand her Honour to have ultimately applied that “principle” in a similar way to Kennett J: see particularly [67] (and see also Raper J at [148]).

71    The third step in the respondent’s argument (premised on the assumption that the relevant agreements were construed in that way) was that those matters supplied a sufficient connection between the Allowances and the “total duration of the industrial action on that day [being the day of protected industrial action]” for the purposes of s 470(1). The asserted connection lay in the relationship between the entitlement to the impugned payment and the performance of work during the relevant period (or being ready and willing to do so during that period). The former was said to be conditioned on the latter as a necessary feature of the relationship of reciprocity one drew from the contract, properly construed. As I have said, that approach to the matters sufficient to engage s 470(1) accords with my preferred understanding of Mammoet (2013) 248 CLR 619, being that adopted by Kennett J in Sydney International (2025) 307 FCR 478 at [167].

72    At least insofar as it was sought to be founded solely upon the terms of the Example Contracts (and associated explanatory material) there were difficulties with that submission by the respondent. Broadly speaking, the difficulty was two-fold.

(1)    Firstly, the fact that particular allowances or allowances generally are described as “remuneration” in the contractual material is really no more than a label. That does not necessarily answer the question of construction identified by Kennett J: whether, in respect of the particular allowance there is reciprocity between the entitlement to that payment and the performance of the employee’s duties.

(2)    Secondly, while there are more concrete indicia (particularly in the most recent contractual documentation) that some or all of the allowances were viewed as some form of consideration for work done, in each case the “entitlement” to the relevant allowance was nevertheless expressly said to be “contained in” or determined in “accordance with” the Policy. It was therefore to the Policy one needed to look to determine whether the amounts withheld in respect of the particular allowance had the connection to the duration of the relevant industrial action asserted by the respondent. Ultimately, the terms of the contracts did not, in and of themselves, reveal whether that was so.

73    Let me now turn to those matters in further detail.

Total Remuneration Statements

74    Curiously, the respondent placed the Total Remuneration Statements at the forefront of this branch of its argument, rather than the concrete terms of the Example Contracts.

75    The status of those documents requires some further explanation. The parties were agreed at [7] of the ASAF that:

Each Relevant Employee was additionally provided as an explanatory document to the contract, a Total Remuneration Statement (TRS) with explanatory notes detailing their estimated gross annual remuneration by the Respondent.

(Emphasis added.)

76    I also note that there was, in the case of the 2018 and 2022 Example Contracts, express reference to those documents in the letter of offer in the following terms:

The attached Total Remuneration statement with explanatory notes details your estimated gross annual remuneration and is included for information purposes only.

(Emphasis added.)

77    Each of the Total Remuneration Statements themselves contained a similar statement in the explanatory notes, where each specifically said: “[t]his statement is provided for informational purposes only”.

78    Whether extraneous materials, such as the Total Remuneration Statements or the Policy, are “incorporated into a contract of employment will depend upon the parties’ intentions as objectively ascertained”: Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403, [33]-[34] (Allsop CJ, Rares and McKerracher JJ) citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [40]-[41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). The principles relevant to the construction of contracts (of which the employment contract is a species) were enunciated by the High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[50] (French CJ, Nettle and Gordon JJ):

[46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

[47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

[48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

[50] Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

79    These principles have been frequently applied in this Court in the context of employment contracts: see eg TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262, [209] (Rangiah, White and O’Callaghan JJ); Secretary, Attorney-General’s Department v Warren (2022) 292 FCR 498, [5] (Rares, Thawley and Anderson JJ); HealthX Group Pty Ltd v Palling (No 2) [2025] FCA 1300, [21] (S C Derrington J).

80    In Riverwood International Pty Ltd v McCormick (2000) 177 ALR 193, North J held at [89] that when considering whether it was the objective intention of the parties for an extraneous document to be incorporated into the contract, it is “both permissible and necessary” to examine the provisions in that extraneous document. While Riverwood preceded Mount Bruce (2015) 256 CLR 104, this observation can be seen to cohere with the observation at [49] of the latter judgment that some materials external to the contract are occasionally relevant to the constructional task.

81    Applying these principles, I do not consider that a reasonable person in the position of the parties would consider that the Total Remuneration Statements were incorporated into the Example Contracts (noting that that proposition was not positively advanced before me). Yousif v Commonwealth Bank of Australia (2010) 193 IR 212 provides a particular example of the application of the above-mentioned principles of construction in circumstances that bear some analogy to those before me.

82    In Yousif (2010) 193 IR 212, the contract contained a term to the effect that an employee was required to comply with all bank policies and procedures existing from time to time. Relying on the approach to a similarly worded term in Riverwood and Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62, the appellant in Yousif argued that the policies were part of the employee’s terms of employment. The Court rejected that submission, observing that it overlooked the principle that whether or not a particular term forms a contractual obligation turns on the intent of the contracting parties, as objectively “conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened” (referring to Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25]). The Court considered it significant that the relevant policy manual contained a disclaimer that the policy contained therein was “not in any way incorporated as part of any industrial award or agreement … nor does it form any part of any employee’s contract or agreement”: see [94]-[95]. That was held to be a clear indication, absent any countervailing factor, that the policy did not form part of the employment contract. It “manifest[ed] an unambiguous intent that the policies contained in the manual are not to have contractual operation”.

83    While the language in the Total Remuneration Statement – that it was included for “informational purposes only” (and the similar language in the 2018 and 2022 Example Contracts) – is not as emphatic as that in Yousif, I have reached a similar conclusion here. That is based, in part, on other textual and contextual indications, all of which point in the same direction in terms of the objective intention of the parties.

84    In particular, the Total Remuneration Statements only purport to provide an estimate of future remuneration (each is headed “…Estimated Annualised Total Remuneration”, emphasis added), adopting language that lacks the concrete nature of legal obligation: Zafiriou v Saint-Gobain Administration Pty Ltd [2014] VSCA 331, [90]-[91] (Osborn JA, Whelan JA and Ginnane AJA agreeing), citing Keeley v Fosroc International [2006] EWCA Civ 1277, [31] (Auld LJ, Dyson and Nourse LJJ agreeing); Bau v Victoria [2009] VSCA 107, [137]-[138] (Neave JA, Dodds-Streeton and Osborne JJA agreeing). Further, as I will discuss below, it is plain on the face of the Example Contracts and the Total Remuneration Statements themselves that questions of remuneration and the Allowances were dealt with by the parties more concretely elsewhere (in the respondent’s policies).

85    All of that tends to indicate that the Total Remuneration Statements had no particular contractual significance, save perhaps as some kind of context, which might be relevant to construction: see Mount Bruce (2015) 256 CLR 104 at [46]. I will return below to deal with, more specifically, how the express references in the 2018 and 2022 Example Contracts to the Total Remuneration Statements (with their qualifications as to its purpose) might be understood to inform the construction of particular contractual terms: see eg ibid, Alphapharm (2004) 219 CLR 165 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

86    The respondent’s submission bypasses any more concrete question of construction of that kind. The respondent instead emphasised that in each case the Total Remuneration Statements set out (under the subheading “cash”) relevant cash components, including base salary, Field Loading Allowance and the Transport Allowance. It was also said, in the explanatory notes to each of the Total Remuneration Statements that:

Total remuneration is defined as the monetary value of all significant components of your employment package including:

- Cash compensation; alternate forms of pay and basic benefits, based on the concept of:

- Income/Benefit to Employee; Cost to Company (exclusive of FBT).

87    That, in and of itself, was said by the respondent to indicate that those Allowances formed part of each employee’s annual “total remuneration”.

88    As I have noted above, that was the first step in the respondent’s argument that there was an element of reciprocity between the entitlement to the Allowances and the performance of the employees’ duties. But the fact that one party has applied a particular label to those payments (in a document said, on its face, to be “provided for informational purposes only” and which does not form part of the employment contract) cannot take the analysis very far.

89    That is particularly so when the Total Remuneration Statements make clear that it is the respondent’s policies which deal with the “entitlement” to those Allowances. Notably, in each of the Total Remuneration Statements, this statement appears in the explanatory notes:

Your entitlement to Rotational Field Loading is contained within the Rotational Remote Benefits Policy, as amended from time to time.

90    It was also noted that:

All components of Total Remuneration indicated here are based on current Company policies. Any changes to these policies may have an effect on your above estimated Total Remuneration.

91    It was thus apparent on the face of the Total Remuneration Statements that it was to such policies that one turned to ascertain matters such as the employees’ entitlement to those Allowances. Labelling something as “remuneration” in the Total Remuneration Statements is not of any particular assistance resolving the issues that arise here. It does not, of itself, establish the proposition sought to be advanced by the respondent – ie that the entitlement to the relevant Allowances hinged on the performance of the employees’ duties.

92    For essentially similar reasons, I would not attribute any particular significance to the fact that the evidence was said to indicate that Chevron’s payroll practice was to treat these Allowances as superannuable “ordinary time earnings” within the meaning of s 6 of the Superannuation Guarantee (Administration) Act 1992 (Cth). There was some factual dispute between the parties as to that matter, but ultimately, as the applicant contended, it could go no further than an internal unilateral decision by Chevron to characterise the payments in a particular way. Indeed, Mr Dalton candidly accepted in oral submissions that that was “not a big point”.

93    The respondent also drew attention to the fact that each of the Total Remuneration Statements included an explanatory statement to the following effect:

All information contained in this statement is based on full-time employment. For employees who work part-time, take an approved leave of absence or commenced work after 1 January, your remuneration will be pro-rated accordingly.

94    That accorded with the evidence of Ms Hill (employed by Chevron as its Manager Labor Relations Asia Pacific), who was not cross-examined on her evidence.

95    The following oral submission was made in respect of that matter:

So we rely on that because that’s an important indicator of the purpose. It is related to the performance of your work. It’s an indicator that it’s not just an emolument of employment or status, is that you don’t get it if you’re on approved leave without pay, and you don’t get it for days that you don’t – if you’re a part-timer, you will get it proportionately.

96    The respondent there (correctly) accepted that such matters were not decisive in themselves (putting it no higher than an “indicator”). It was correct to do so because, as I have said, the Total Remuneration Statements did not purport to comprehensively specify how entitlement to the Allowances would be determined – the Total Remuneration Statements rather point to the Policy as the determinative instrument for those matters.

Example Contracts

97    I turn then to the Example Contracts.

98    There are variations in the wording of each of those documents. The respondent nevertheless submitted that one could discern from each of them a “contractual link between the Allowances and payment for the performance of work”. It is necessary to analyse that contention more closely by reference to the specific wording adopted in each contract.

2014 Example Contract

99    The 2014 Example Contract consisted of a letter of offer dated 28 July 2014 and (according to the terms of that letter) an appendix which contained definitions. For reasons that are not clear, the parties did not include the appendix in evidence. However, the parties agreed that the Court should proceed on the basis that the definitions in the Appendix to the Example Contracts were in substantially the same terms for all three contracts, and for all Relevant Employees (reflecting what was agreed in paragraph [7A] of the ASAF). I have proceeded on that basis: see [126] below where I deal with the relevant aspects of those definitions in the context of the 2018 Example Contract.

100    The link between the Allowances and payment for the performance of work in the 2014 Example Contract was said to lie in the following passage of the letter (under the heading “HOURS OF WORK”):

Your hours of work are in accordance with the Hours of Work Policy. For the purpose of that policy, you are a Ten Week Roster Employee.

Hours of work are determined by the Company at its sole discretion and are based on operational requirements at the Company's Remote Work Location. The hours of work will usually be consecutive and may include night shifts. The on duty period commences at the commencement of work at the operation and the off duty period commences on the day of departure from the operation.

Normally, on each day of duty, you will be required to work a scheduled shift of twelve (12) hours inclusive of a paid meal break. You may, from time to time, be required to work reasonable additional hours outside your scheduled shifts. Your salary and field loading compensates you for any reasonable additional hours worked.

(My emphasis.)

101    It will immediately be noted that the last sentence, upon which Chevron relied in particular, does not refer to the Transport Allowance. Nor is there any other reference in the 2014 Example Contract to the Transport Allowance being some form of compensation for the performance of work.

102    Moreover, the letter of offer said (under the heading “SALARY”):

Your gross base salary will remain unchanged at $100,200 per annum, which includes compensation for any reasonable additional hours worked outside your normal hours, and is paid monthly to your nominated bank account.

(My emphasis.)

103    One way of reconciling those statements is that it was the gross base salary alone that included “compensation for any reasonable additional hours worked outside your normal hours” (my emphasis). On that reading, the statement in the “HOURS OF WORK” section that the “salary and field loading” compensated the employee for such matters simply reflected the fact that one of those component payments did so.

104    In any event, there is some ambiguity about those matters. There are obvious difficulties in drawing from that any general proposition about a connection between the entitlement to the Allowances (one of which is not even mentioned in those parts of the 2014 Example Contract) and the performance of work.

105    More fundamentally, other aspects of the 2014 Example Contract make clear that one had to look to the Policy to understand those matters.

106    The reference to “field loading” I have noted above had been explained on the preceding page by reference to the Policy:

ROTATIONAL ONSHORE FIELD LOADING

The Company has assigned you to your nominated onshore Remote Work Location for the purposes of mobilisation…As an onshore Rotational Employee you will receive the onshore field loading which is equal to 40% of your gross base salary with a minimum of $51,000 to a maximum of $70,838.00 per annum in accordance with the Rotational Remote Benefits Policy. Therefore your field loading will be $51,000 per annum.

(Emphasis added.)

107    The emphasised words make plain that the entitlement to the Field Loading Allowance was governed by the Policy (it was to be paid “in accordance with” that document).

108    The entitlement to the Transport Allowance was noted immediately after, in the following passage:

TRANSPORT ALLOWANCE

Your entitlement to a Transport Allowance is contained in the Rotational Remote Benefits Policy. For the purposes of that policy, your Point of Engagement is Perth, Western Australia.

(Emphasis added.)

109    I will return to what is said in the Policy regarding those Allowances below. But it is apparent from those passages (and from other aspects of the 2014 Example Contract – see eg the reference to the Hours of Work Policy) that many aspects of the employees’ working conditions and entitlements were provided for in more detail in those, and other, policy documents.

110    As I have already noted above, that position was also reflected in the accompanying Total Remuneration Statement which (like the other Total Remuneration Statements in evidence before me) stated that the employee’s “entitlement to Rotational Field Loading was contained within the Rotational Remote Benefits Policy, as amended from time to time”.

111    It was specifically provided that those policy documents could be changed (in the “sole discretion” of Chevron) and did not form part of the contract of employment. In that regard, the 2014 Example Contract provided:

The Company has policies and procedures which have been made accessible to all employees. You will be required to familiarise yourself with and comply with such policies and procedures as amended by the Company in its sole discretion from time to time. The Company's policies and procedures do not form part of your contract of employment and are not binding on the Company.

(Emphasis added.)

112    Nevertheless, as I have discussed above, the 2014 Example Contract specified that the relevant entitlement to the Allowances “is contained in” the Policy (or to be paid in “accordance with” that document). The terms of the 2014 Example Contract also clearly convey that the objective intention of the parties was that the payment of those Allowances was obligatory (eg “you will receive the onshore field loading” and “[y]our entitlement to a Transport Allowance is contained in the Rotational Remote Benefits Policy” – my emphasis).

113    That would seem to indicate that (at least some) provisions contained in the Policy were objectively intended by the parties to have contractual effect – albeit that those matters could, on the face of the agreement, be unilaterally altered by Chevron. It was an obligation under the relevant employment contracts to pay the Allowances in such a manner and in such amounts as determined by Chevron in the policies as they exist from time to time: see eg Elisha v Vision Australia Limited (2024) 99 ALJR 171 at [42] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones J). The sense in which the Policy was “not binding” and “did not form part of [the] contract” can be understood as meaning that it could be amended by Chevron in the future rather than being set in stone. I will proceed on that basis. Whether there were any implied limits on that power to unilaterally alter the Policy, and (if so) what those limits were, is not a matter I need to determine (see in that regard, Elisha (2024) 99 ALJR 171 at [42]; Nikolich (2007) 163 FCR 62, [122] (Marshall J), Riverwood (2000) 177 ALR 193, [152] (Mansfield J) citing Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 63, 137-138; and, for an even stricter view as to the capacity to unilaterally alter those matters, see Riverwood [111] (North J)).

114    The important point for present purposes is that it was to those policies that one was required to look to ascertain the manner in which employees became “entitled” to those Allowances. The contract did not, of itself, answer that question (even putting to one side the ambiguities I have noted above).

2018 Example Contract

115    Essentially the same position applies as regards the 2018 Example Contract.

116    It consisted of a letter of offer dated 26 April 2018, and two appendices.

117    Appendix 1 was headed “position conditions – ten week roster” and contained this statement (under the heading “HOURS OF WORK”):

As a field assigned employee, you will be required to work a roster as determined by the Company. You are initially a Ten Week Roster Employee.

The hours of work will usually be consecutive and may include night shifts.

The on duty period commences at the commencement of work at the operation and the off duty period commences on the day of departure from the operation.

Normally, on each day of duty, you will be required to work a scheduled shift of twelve (12) hours inclusive of a paid meal break. You may be required to work reasonable additional hours outside your scheduled shifts. Your gross annual remuneration compensates you for any reasonable hours worked, including any overtime, loadings or penalty rates that may otherwise apply.

(Emphasis added.)

118    The term “gross annual remuneration” was not defined.

119    However, the respondent drew attention to the fact that the Total Remuneration Statement was expressly referred to in the letter of offer and said to be attached to the sample contract (albeit for “information purposes only”) and was said to detail “your estimated gross annual remuneration”. The Total Remuneration Statement included figures for “Base Salary”, the “Onshore Rotational Field Loading Allowance” and the “Transport Allowance”. As I have also noted above, the explanatory notes to the Total Remuneration Statement said that the entitlement to the “Onshore Rotational Field Loading Allowance” was contained in the Policy as amended from time to time.

120    I have already concluded that the Total Remuneration Statements did not form part of the contracts. But they are nevertheless an aspect of the context in the sense discussed in Mount Bruce (2015) 256 CLR 104 at [46] (a “document … referred to in the text of the contract”) to which regard may be had in determining the objective intentions of the parties. In the case of the 2018 Example Contract, regard to that material indicates that the parties objectively intended that the term “gross annual remuneration” included the Allowances. That, in turn, tends to support Chevron’s submission that the Allowances constituted compensation for all hours worked, including reasonable additional hours required of the employee.

121    However, like the 2014 Example Contract, the 2018 Example Contract said (under the heading “SALARY”):

Your commencing gross base salary is $110,000 which includes compensation for any reasonable additional hours worked outside your normal hours, and any other entitlements that may apply…

122    The Total Remuneration Statement made clear that that payment did not include either of the Allowances.

123    That raises the same tension (and the same ambiguity) I have noted above in connection with the 2014 Example Contract.

124    In any event, as with the 2014 Example Contract, the 2018 Example Contract indicates that the parties intended that an employee’s entitlement to those Allowances would be governed by the Policy.

125    The 2018 Example Contract contains two specific references to the Transport Allowance.

126    In Appendix 1, the following passage appears:

TRANSPORT ALLOWANCE

Your entitlement to a Transport Allowance is contained in the Rotational Remote Benefits Policy. For the purposes of that policy, your Point of Engagement is Perth, Western Australia.

127    Then, in Appendix 2, the term “transport allowance” is defined as follows:

Transport Allowance

An allowance to assist with the cost of transportation between an employee's approved Point of Engagement and usual place of residence

128    The term “Point of Engagement” was defined as follows:

The employee's nominated Australian Capital City's domestic airport that is acknowledged and accepted by the Company.

(As I have said above, the parties were agreed that I should proceed on the basis that the 2014 Example Contract contained definitions in substantially similar terms).

129    That plainly has in mind that employees are required to undertake some expenditure as an aspect of getting from their usual place of residence to a place nominated by their employer (which is further identified in the Policy). I will return to that further below. I observe for now that, like the 2014 Example Contract, the 2018 Example Contract made clear that one was to look to the Policy to determine one’s “entitlement” to the Transport Allowance.

130    The Field Loading Allowance was not referred to specifically in the letter of offer or the appendices. However, the existence of other allowances and entitlements (and the fact that they were dealt with in Chevron’s policy documents) was noted in the letter of offer:

The Company maintains workplace policies and procedures, including for the provision of leave, allowances and other entitlements, which are accessible for review by all employees…

(Emphasis added.)

131    The use of the plural terms “allowances and other entitlements” made clear that the parties had in mind that an employee would potentially be entitled to allowances other than the Transport Allowance, and that such entitlements would be dealt with in those policy documents. The terms of the Total Remuneration Statement attached to the 2018 Example Contract confirm that in respect of the Field Loading Allowance – “[y]our entitlement to Rotational Field Loading is contained within the Rotational Remote Benefits Policy, as amended from time to time”.

132    Albeit expressed in somewhat different terms to the 2014 Example Contract, the 2018 Example Contract contained a clause dealing with the respondent’s capacity to amend its policies and providing that they did not form part of the employment contract:

The Company's policies and procedures do not form part of your employment contract and may be changed at the Company's discretion to meet operational and business needs or legislative requirements. You will need to keep up to date with any amendments or additions to these policies and procedures.

133    As I have said above in respect of the 2014 Example Contract, the text of the 2018 Example Contract nevertheless plainly pointed to an objective intention on the part of the parties that there would be an obligation on Chevron to pay such allowances as were determined in the Policy from time to time (see again the reference to “allowances and other entitlements” contained in Chevron’s workplace policies and the reference to “[y]our entitlement to a Transport Allowance” (my emphasis). Again, that points to an objective intention that there would be an obligation on Chevron to pay the Allowances in such a manner and in such amounts as determined in the policies as they existed from time to time. As with the 2014 Example Contract, it is unnecessary for present purposes to determine whether there were any implied limits on that power to unilaterally alter the Policy, and, if so, what those limits were.

2022 Example Contract

134    Like the 2018 Example Contract, the 2022 Example Contract consisted of a letter of offer (dated 16 February 2022) and two appendices.

135    In the letter of offer, this was said under the heading “SALARY”:

Your commencing gross base salary is $115,900 and is paid monthly to your nominated bank account. Your base salary and allowances include compensation for any reasonable additional hours worked outside your normal hours and any other entitlements that may otherwise apply under legislation, Award or other industrial instrument including but not limited to minimum weekly wages, allowances and loadings, overtime penalty rates, weekend and other penalty rates, special rates) ("Minimum Entitlements"). The Minimum Entitlements are not incorporated as terms of this agreement and your base salary and allowances are paid in full satisfaction of the Minimum Entitlements.

(Emphasis added.)

136    That, of course, differs from the corresponding section in the cover letter in the 2018 Example Contract.

137    Appendix 1 contained a substantially similar statement to that included in the 2018 documentation:

Normally, on each day of duty, you will be required to work a scheduled shift of twelve (12) hours, inclusive of paid meal breaks. You may be required to work reasonable additional hours outside your scheduled shifts. Your gross annual remuneration compensates you for any reasonable additional hours worked, including any overtime, loadings or penalty rates that may otherwise apply. Hours of work and rosters are subject to change in accordance with operational requirements.

138    Again, the term “gross annual remuneration”, and each of its components, was explained by the respondent by reference to the Total Remuneration Statement (to which the letter of offer referred), which was in essentially the same form as that described in paragraph [117].

139    Taken together, those provisions more clearly suggest (as compared to the 2014 and 2018 Example Contracts) that the Allowances were intended by the parties to be some form of consideration for work done. However, there remained some ambiguity: in particular, the statement that the base salary and allowances “include[d]” compensation in respect of such matters left open the possibility that only some of those payments were paid in consideration of those matters.

140    Moreover, and more fundamentally, it remained the case that the parties appeared to have objectively intended that the entitlement to such Allowances would be dealt with more specifically elsewhere.

(1)    Appendices 1 and 2 included statements and definitions regarding the Transport Allowance that are substantially identical to those extracted at paragraph [126].

(2)    The letter of offer contained the same statement as the 2018 Example Contract regarding allowances and entitlements more generally (“The Company maintains workplace policies and procedures, including for the provision of leave, allowances and other entitlements, which are accessible for review by all employees…”).

(3)    The accompanying Total Remuneration Statement made clear that one such allowance was the Field Loading Allowance and stated that the employee’s “entitlement to Rotational Field Loading is contained within the Rotational Remote Benefits Policy, as amended from time to time”.

141    As such, and as with the 2014 and 2018 Example Contracts, the terms of the 2022 Example Contract did not decisively indicate whether the entitlement to the impugned payment was conditioned on the performance of work during the relevant period (the “duration of the industrial action”). It was rather to the Policy one needed to look to determine whether the particular allowance was made conditional upon performance by the employee of the full range of work assigned.

142    As with the earlier contracts, the 2022 Example Contract includes a clause dealing with the respondent’s capacity to amend the company’s policies and providing that those policies did not form part of the employment contract. The wording was identical to the 2018 Example Contract (see my observations above regarding that clause which apply equally here).

Terms of the Policy

143    I turn then to the terms of the Policy.

144    As I have discussed above, in a number of important respects the Example Contracts specified that the relevant entitlement to the Allowances “is contained in” or paid in “accordance with” the Policy (with the proviso that those matters could be unilaterally altered by Chevron). In that regard, the parties agreed that an employee’s eligibility to be paid the Allowances was dealt with (in part) in clause 6.1 of the Policy, which stated:

6.1 Eligibility

For the purpose of this Section 6.0 [Headed “Field Loading Allowance”], an Eligible Employee is a Rotational Employee assigned to work at a Remote Work Location for a period of three (3) months or more.

This Remote Work Location must be confirmed by the Company in writing. An Eligible Employee shall be paid the applicable Field Loading allowance, in accordance with their assigned Remote Work Location.

Where an employee is temporarily assigned to a Remote Work Location for a period of less than three (3) months, refer to the Hours of Work Policy 203 for applicable entitlements.

145    Although seemingly directed only to the Field Loading Allowance, the parties agreed in the ASAF at [5] that this clause determined eligibility for both Allowances. Although there is some ambiguity as to that issue (see further below as to the Transport Allowance), I accept that agreed position. The parties also agreed that each of the Relevant Employees was an “Eligible Employee” within the meaning of that clause. That is, they were each a “Rotational Employee” assigned to work at a “Remote Work Location” for a period of three months or more.

146    The term “Remote Work Location” was defined in appendix 2 to the Policy as follows:

The Company's remote work location (as determined by the Company) that is an Australian LNG Operations' offshore platform, Company approved offshore drilling rig, an unmoored offshore vessel, or a remote Company location that is located within the northwest region of Western Australia (i.e. Barrow Island and Onslow).

147    The term “Rotational Employee” was defined as:

[a]n Australian payroll employee who is required to fly in fly out (FIFO) into a Remote Work Location on a regular basis in accordance with a defined roster pattern.

148    As to the reference there to a “roster pattern” that was dealt with in the Policy in clause 4.0 under the heading “Roster – Work Schedules”, which stated:

A Rotational Employee assigned to a Remote Work Location shall be engaged to work in accordance with one of the Company's approved work schedules. These work schedules are determined by the Company at its sole discretion and based on operational requirements.

149    It was seemingly common ground that the Relevant Employees were required to work either a 10-week roster, or a two weeks on, two weeks off, “even time roster”. Those work schedules were identified in the Policy as amongst the Company’s “approved work schedules” in a table in clause 4.0. It was also seemingly common ground (although apparently dealt with in a separate “hours of work” policy, which was not in evidence) that the Relevant Employees worked 12-hour shifts while on roster (which cohered with the expectations conveyed in the letters of offer – see above).

150    The Policy did not expressly provide that an employee had to work those rostered shifts to be eligible for the Allowances.

The Field Loading Allowance

151    The Field Loading Allowance was described in the Policy at clause 6.0 as follows:

Field loading is compensation for current and future aspects of work performed at remote locations, including but not limited to, the location and nature of the operations, travel time (including any delays), accommodation conditions, all hardships and disabilities of the work, mobilisation and demobilisation impacts and relevant safety controls.

152    “Eligible Employees” were entitled to a Field Loading Allowance. I have set out the eligibility clause at [144] above.

153    The rate at which the Field Loading Allowance was paid differed between different sites, depending upon whether the site was classified as “Onshore Rotational”, “Offshore Rotational” or whether the employee was located at “Thevenard Island”. The Relevant Employees worked at “Onshore” and “Offshore” rotational sites. In respect of those sites the Field Loading Allowance was set at a “fixed rate of [$76,000 for onshore or $91,000 for offshore] per annum as determined by the company at its sole discretion” at clauses 6.1 to 6.3 of the Policy.

154    As the respondent observed, the Field Loading Allowance is, in express terms, “compensation for current and future aspects of work performed at remote locations” (my emphasis). The various matters then non-exhaustively listed are, broadly speaking, various “hardships and disabilities of the work” (eg being required to do that work in a particular location, associated with particular onerous travel requirements and accommodation conditions and being subject to a particularly onerous safety regime: see, in part, Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024 (Cth) pt 4 div 1 sub-div B, ch 3 pt 2, given effect by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)).

155    The different levels of compensation as between onshore and offshore rotational Remote Work Locations can be seen to reflect (in broad brush terms) a graduated assessment of those hardships.

156    As the respondent observed, that points to an analogy with the facts of CPSU [2019] FCA 975 to which I have referred above. As the respondent argued (and as I have noted above), the seagoing allowance in that case was paid “in recognition of the special duties performed” and hardships endured in connection with those duties, as well as the fact that the overtime penalty payments, shift penalties, and other disability allowances which would normally apply will not be paid: at [20].

157    As the respondent submitted, in each case:

It’s recognising and saying, your job, that includes the performance of your work… involves you being away from your loved ones for extended periods of time, working in challenging environmental conditions...

158    The respondent also drew an analogy with a further aspect of O’Callaghan J’s reasoning in CPSU [2019] FCA 975 where his Honour placed reliance upon the fact that the seagoing allowance was paid in lieu of certain other allowances (the overtime penalty payments, shift penalties, and other disability allowances which would normally apply under the applicable Award).

159    In that regard, the respondent drew attention to the fact that there was significant overlap between the matters mentioned in clause 6.0 of the Policy and the Industry Allowance in the Hydrocarbons Industry (Upstream) Award 2020 which would otherwise cover the Relevant Employees. In particular, the Award relevantly stated at clause 20.2(b)(ii):

The industry allowance recognises and is in payment for all aspects of work in the industry, including but not limited to the location and nature of hydrocarbons operations, dislocation, clothing, boiler cleaning, dirt, wet, height, fumes, heat, cold, confined space, and all other disabilities not expressly dealt with under clause 20.2.

160    That allowance was characterised in the Award as a “wage-related” allowance (as opposed to an “expense-related” allowance, dealt with in clause 20.3). While it was expressed as a set amount per week (cl 20.2(b)(i)), it was included as part of the “ordinary hourly rate” (cl 2 and cl B.1.1 of Schedule B) for the purposes of acting as the base amount when calculating multiplicative penalty and overtime rates. The Award also provided that “[w]here an employee is paid by the hour, the allowance will be 1/38th of the weekly allowance for each hour worked” (clause 20.1(b), my emphasis). As in CPSU [2019] FCA 975, that amount was thus obviously a payment that, if withheld, “would have been payable in relation to the time during which the employee[s] engaged in industrial action had the employee[s] worked during that period”: CPSU at [42].

161    I did not understand the applicant to dispute those matters.

162    The applicant rather disputed that the Field Loading Allowance was in fact paid in lieu of the Industry Allowance. In particular, the applicant observed that the Policy expressly stated (at clause 4.1):

The annual salary of a Rotational Employee assigned to the Ten Week Roster (2/2/2/4) and Fifteen Week Roster (3/3/3/6) includes but is not limited to the total consideration for annual leave, annual leave loading, license allowance, industry allowance, shift allowance, call out penalty, travel time, and four (4) days of competency, assurance and training days.

(Emphasis added.)

163    It was suggested by the applicant that it was significant that the term “annual salary” was used instead of “total remuneration” or “gross remuneration” (the terms used in the Total Remuneration Statement and in aspects of the Example Contracts to refer to payments which included the Allowances). That was said to give rise to ambiguity as to whether the Field Loading Allowance was paid in place of the Industry Allowance in the Award. It was further submitted that:

The fact that it’s ambiguous means that some caution needs to be exercised before putting any real weight on the fact that this looks a bit like the industry allowance in a different award.

164    It is not simply the case that the Field Loading Allowance “looks a bit like” the Industry Allowance. There is, self-evidently, significant overlap between those two allowances and the matters for which they were said to compensate employees.

165    And as to the supposed ambiguity in clause 4.1, there is in fact more clarity than first appears when regard is had to other aspects of the Policy (allowing, of course, for the fact that this is a document described as a “policy” to be applied in an industrial context in real world conditions).

166    There is no definition of the term “annual salary” in the Policy, and the term “remuneration” is not used at all (let alone “gross” or “total” remuneration).

167    There is, however, a strong contextual indicator that the Field Loading Allowance was regarded by the drafter of the Policy as part and parcel of an employee’s compensation or “remuneration” for the performance of duties. In particular, part 5 of the Policy deals with the subject of “Competency, Assurance and Training Days (CAT)”, which is one of the other matters the “annual salary” is said to be paid “in consideration for” in clause 4.1 of the Policy.

168    Those days are described as follows:

CAT days enable the completion of training that cannot be completed during roster. The company will provide training to ensure Employees have the skills, competencies and required behaviours to perform duties in direct connection with their job role.

169    A distinction is then drawn (in clause 5.1) between those aspects of that training for which rotational employees are compensated by their “annual salary” and those aspects for which further payment is required:

The annual salary of an Even Time, Ten Week and a Fifteen Week Roster Employee includes compensation for four (4) days per calendar year of competency, assurance and training days that the Company may require the employee to undertake during the employee's off duty period. Such work activities may be conducted in Perth or any other offsite location.

For each approved day worked in excess of the four (4) competency, assurance and training days, an Employee shall receive payment, calculated as follows:

8 hours x (1.5 x (annual base salary + field loading) / annual rostered days)

Any competency, assurance and training days in excess of four (4) with a duration over 8 hours will be by agreement and supervisor approval must be granted.

170    Two aspects of that passage are important:

(1)    first, the distinction between “annual base salary” (my emphasis) and “annual salary”. That textual difference indicates that the annual “base” salary does not include all of the components that make up the annual salary; and

(2)    secondly, reinforcing that construction, and pointing to what is included in the term “annual salary”, compensation for any training days in excess of the four days already compensated for by the annual salary is calculated by reference to a figure comprising the sum of “annual base salary + field loading”.

171    The conclusions to be drawn from the matters of text and context outlined above are these:

(1)    the Field Loading Allowance is an aspect of an employee’s “annual salary” as that term is used in the Policy;

(2)    it is paid to compensate employees for, amongst other things, the Industry Allowance to which they would otherwise be entitled (clause 4.1 of the Policy);

(3)    the Field Loading Allowance has an obvious overlap with the Industry Allowance, as noted at [164] above, which indicates that in the bundle of components which form an employee’s annual salary, it is the component provided in lieu of the Industry Allowance. As in CPSU, that tends to suggest it has the same character;

(4)    the fact that the Field Loading Allowance is expressly paid for “all aspects of work in the industry” (see again the terms of clause 6.0 of the Policy) indicates that it formed part of the “fundamental consideration” involved in the exchange of work for pay; and

(5)    when read with the (admittedly more ambiguous) Example Contracts, the arrangements between the parties thus envisaged reciprocity between the entitlement to that Allowance and the performance of the particular employee’s duties.

172    If that is so, it necessarily follows that the entitlement of the workers to receive the Field Loading Allowance was dependent on them working their allocated shifts. That is sufficient to conclude that s 470(1) is engaged. As Kennett J observed in the passage from Sydney International (2025) 307 FCR 478 at [167], the connection required by the statutory phrase “in relation to the total duration of the industrial action on that day” is a connection between the entitlement to the impugned payment and the performance of work (or availability for work) during the “duration of the industrial action”. That connection exists here.

173    In contending that was not so, the applicant’s further point (built on its submissions as to the proper construction of s 470(1)) was that the Field Loading Allowance was “not attachable to … any particular period” and is rather “attached to the inconvenience and disability of being on and having to go to a remote site”. In that regard the applicant sought to draw something from the fact that the Thevenard Island rate for the Field Loading Allowance (not an allowance the subject of this dispute) was set at $62.48 per night or complete shift spent on the island. As I have noted above, by way of contrast, the onshore and offshore rates for the Field Loading Allowance (the particular payments in issue here) were each set at a fixed rate per annum.

174    On that basis, it was argued that the allowance is best characterised as being “directed at, and attributable to, the fact of the person being a rotational worker”. It was, in other words, a payment directed to the holding of that “status”, with no connection with the period of industrial action. The applicant described it as a “lump sum compensation because of status”.

175    I do not accept those submissions. They seem to me to fall into the same trap as the arguments rejected in CPSU [2019] FCA 975 and Sydney International (2025) 307 FCR 478.

176    The Field Loading Allowance reflects a (perhaps rough and ready) approximation of the value of various aspects of work in the industry on remote sites which involve hardship, and which otherwise would have been compensated for under the Award.

177    That that measure of compensation is not quantified by reference to particular time periods is, as O’Callaghan J observed in respect of the somewhat similar submissions advanced in CPSU [2019] FCA 975, “beside the point”: at [28]-[29]. It is beside the point because the essential question is that which I have identified and answered above. Was the entitlement of the workers to receive the Field Loading Allowance dependent on them working their allocated shifts? The answer to that question is “yes”. It does not matter that it has not been expressed as a particular payment for particular hours worked.

178    The applicant’s further submission that a disjunction between the two correlative obligations can be discerned from the fact the allowance remains payable if an employee takes sick leave should also be rejected. Sick leave is a statutory entitlement under ss 96-97 of the FWA, the use of which maintains employees’ rights to be paid.

179    Accordingly, the respondent was prohibited from paying the relevant employees the Field Loading Allowance in respect of the period of industrial action by s 470(1) of the FWA.

The Transport Allowance

180    The Transport Allowance is described in the Policy at clause 7.0 as:

A monthly taxable Transport Allowance of $148.68 is paid to an Eligible Employee to assist with the cost of transportation between their Usual Place of Residence and Point of Assembly. The employee is to pay for any other associated transport costs, from their Usual Place of Residence to their Point of Assembly, in excess of this allowance. The Company will not provide or reimburse for any incidental travel expenses such as airport transfers, parking, trolley hire, excess baggage, lounge fees, refreshments, or meals.

(Footnotes omitted.)

181    That passage is broadly consistent with (but is more detailed than) the references to the Transport Allowance in the Example Contracts I have extracted above. It makes clear that the particular amount is “paid to an Eligible Employee to assist with the cost of transportation between their Usual Place of Residence and Point of Assembly”. It then goes further and specifically provides that any other associated transport costs “in excess of this allowance” fall on the employee (and makes clear that Chevron is not otherwise responsible for “any incidental travel expenses”). Curiously, that allowance seemingly only has in mind transport in one direction: “from” the usual place of residence “to” the Point of Assembly. That is also apparent from the definition of the term “Point of Assembly” itself, which is defined in Appendix 2 to the Policy as follows:

“[a] defined location for Rotational Employees to assemble prior to onward travel to the Remote Work Location. The Point of Assembly for all onshore and offshore rotational positions is the Perth Domestic Airport or Onslow Town Centre”

(My emphasis.)

182    In contrast, in clause 3 of the Policy, it was said that the “level of benefits provided by this policy shall be determined by the Company so as to assist in the employee’s mobilisation and demobilisation” (my emphasis). But nothing was said to flow from that apparent discrepancy.

183    The term “Usual Place of Residence” is defined in Appendix 2 to the Policy as:

The employee's usual place of permanent residence at time of hire or the employee's usual place of residence during off duty periods after commencement with the Company.

184    I have already mentioned that the meaning of the term “Eligible Employee” is somewhat complicated by the fact that the definition of that term in paragraph 6.1 is preceded by the words “[f]or the purpose of this Section 6.0”, which may suggest that it applies only to the Field Loading Allowance which is dealt with in that Section. However, there is no other definition of that term in the Policy, which is plainly used to describe the employees who are eligible for the “benefits” (plural) for which the Policy provides. For example, clause 3 provided that:

Benefits outlined in this Policy must be claimed by an Eligible Employee within three (3) months of the employee accessing a benefit.

(My emphasis.)

185    For those reasons, and despite the unfortunate wording of clause 6, I accept that the parties are correct in their joint position that that clause determined eligibility for both allowances. Clause 7.0 would otherwise have no relevant operation, which does not seem to me to be a commonsense way of reading a “policy” document in an industrial context. As such, an Eligible Employee is a “Rotational Employee assigned to work at a Remote Work Location for a period of three (3) months or more”. It will also be recalled that the term “Rotational Employee” was defined as “[a]n Australian payroll employee who is required to fly in fly out (FIFO) into a Remote Work Location …”.

186    Related to that last point, part of the explanation or purpose for the Transport Allowance (at least from Chevron’s perspective) is ensuring that the “fly-out” aspect of those arrangements is done in an orderly and efficient manner. That can be seen in clause 8.2 of the Policy, a clause to which the respondent drew my attention in oral argument:

It is the expectation of the Company that a Rotational Employee, regardless of their Usual Place of Residence, make the necessary arrangements to arrive at their Point of Engagement and the Point of Assembly fit for duty and in sufficient time for their appointed check-in time for onward travel to the Remote Work Location.

It is the employee's responsibility to make any necessary travel and accommodation arrangements to reach their Point of Engagement. These arrangements will be at the employee’s expense.

187    The term “Point of Engagement” was defined in the same terms as “Point of Assembly” (see again Appendix 2). That seemingly reflected the fact that the location of the Point of Engagement and the Point of Assembly would generally be identical, unless the “Extended Travel Benefit” provisions in section 9 applied. Again, neither party suggested that that was of any particular importance for present purposes.

188    The respondent made this submission in respect of clause 8.2:

So 8.2 explains really what the quid pro quo is for the transport allowance. So, the employee’s expected to be at the point of assembly or the point of the engagement. Basically you’ve got to be at Perth Airport fit, rested, and ready to be mobilised. And that is part of your obligation. Your obligation, as a rotational remote employee, is to be mobilised to work on shift, and to work in accordance with your roster when you’re on shift at that remote location. It’s too narrow to describe this allowance as a reimbursement …

189    That submission emphasises the first aspect of clause 8.2 which is expressed as an “expectation”. It overlooks the second paragraph which more pointedly and concretely identifies the “employee’s responsibility”. That responsibility is two-fold: making any necessary travel and accommodation arrangements to reach their Point of Engagement; and (at least in the first instance) paying for those arrangements out of their own pocket. No doubt that is with a view to achieving a particular end (ensuring that the workforce can be mobilised to work on shift, and to work in accordance with their roster at a remote location – see also clause 3 of the Policy). But the matters for which the allowance is the quid pro quo are more particular: they are the granular means of achieving one aspect of that end. Placing responsibility for those matters on employees comes with a cost to them in terms of time, inconvenience and disbursement of money.

190    An employee will have discharged those specific obligations at the point at which they have arranged, paid for, and completed the required travel to reach their Point of Engagement. The Transport Allowance was a benefit to which the employees were entitled upon completing those required steps in accordance with the “responsibility” imposed upon them under the Policy (read with their contracts of employment): see, by way of analogy, Mammoet (2013) 248 CLR 619 at [61].

191    It is true that the amount of the Transport Allowance was not determined by reference to the amounts employees actually spent on travel or the time spent making the required arrangements. It is likewise true that employees could spend the Transport Allowance on whatever they chose and were not obliged to spend it on transport costs. As with the Field Loading Allowance, this was a rough and ready measure of compensation. Some employees would benefit more than others under the Policy in monetary terms. Some would spend very little money at all on travel (those with cheap and efficient access to the airport). Others, as the Policy recognised, would exceed the Transport Allowance and be left to pay part of the travel cost themselves.

192    None of that alters what is obvious from the terms of the Policy read as a whole (which reflects the terms of the Example Contracts). The allowance is a form of compensation for (at least some) of the actual costs incurred in travel to the Point of Engagement; the inconvenience of being required to use personal funds for work related transport; and the inconvenience and time taken to make relevant travel arrangements.

193    In those circumstances, there was no connection between the entitlement to the impugned payment and the performance of work during the “duration of the industrial action”. The entitlement had already arisen at an anterior point in time to the period of that industrial action. Section 470(1) is not engaged with respect to the Transport Allowance in those circumstances.

Timing of payments

194    For completeness, I note that Chevron made a point about the fact that both Allowances were paid monthly. In the case of the Transport Allowance that was provided for specifically in the Policy (see the extract at [180] above). In the case of the Field Loading Allowance, it appeared (from the evidence of Ms Hill) that that was simply Chevron’s practice.

195    It was not entirely clear whether it was argued that the fact of the Allowances being paid monthly was sufficient, in itself, to engage Raper J’s separate reasoning in Sydney International (2025) 307 FCR 478 – ie whether it was contended that the month in respect of which the payment was made included the period of industrial action, and that is sufficient of itself to engage s 470(1).

196    That was seemingly not Chevron’s submission, because it relied upon that matter as one of several matters that supported its “reciprocity” argument (see above). But to the extent it did put such an argument as an independent point, I do not accept that submission for the reasons I have already given. The happenstance that a particular allowance becomes payable in respect of a period during which protected industrial action takes place is not sufficient to engage s 470(1).

Relationship between sections 323 and 470 of the FWA

197    Finally, as regards s 470 of the FWA, Chevron argued that the common ground between the parties that the Allowances were “amounts payable to the [Relevant Employees] in relation to the performance of work” within the meaning of s 323(1) was in tension with the applicant’s contentions that those payments did not engage s 470. In oral submissions, Mr Dalton put that argument this way:

… there’s a fairly narrow pathway through to victory, as it were, because a necessary premise of their case when you’re bringing not an action in contract for emoluments that you have that are based on your employment, you’re bringing an action under section 323, you have to accept that the amounts that were payable are in relation to the performance of work. And given that premise, it’s a short step, we say, to fall into section 470.

198    In making that argument Mr Dalton placed some reliance upon the note to s 323(1), which states:

Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

(Such an “explanatory” note forms part of the statute – s 13 of the Acts Interpretation Act 1901 (Cth) – and can inform the task of construction: see generally, P Herzfeld and T Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) at [5.140]).

199    That was said to indicate that the term “in relation to the performance of work” in s 323(1) of the FWA is not limited to payments in the nature of wages and salary. That is, of course, a premise of the applicant’s case, given the fact that it contends (and Chevron agrees) that the Allowances were within that provision (subject to the operation of s 470).

200    But none of this is determinative of the fundamental question that arises under s 470: that is, was there a connection between the entitlement to the impugned payment and the performance of work (or availability for work) during the “duration of the industrial action”? (see again my observations regarding the reasoning of Kennett J in Sydney International (2025) 307 FCR 478 at [167] – which I prefer for the reasons I have already given – and cf Raper J at [119]-[121]). The answer to that question falls one way in respect of the Field Loading Allowance and the other in respect of the Transport Allowance. The parties’ agreement that both Allowances could be said to more broadly be “in relation to the performance of work” within the meaning of s 323(1) does not answer that more precisely framed question.

Did Chevron breach section 323 of the FWA?

201    As I have noted above, it was not contested by the parties that if s 470 applied, then the Allowances were not “amounts payable” pursuant to that provision. That is correct.

202    I reach that conclusion by reasoning that is generally similar to the respondent’s primary submission. As I have said, s 323(1) operates upon “amounts payable to the employee in relation to the performance of work” (my emphasis). Section 470(1) is a statutory command to an employer not to make payments to an employee in certain circumstances. Where it applies to an amount that would otherwise be payable under s 323(1), it removes the obligation upon the employer to pay. That is simply a matter of reading the statute as a whole. In any event, were it necessary to do so, I would adopt the respondent’s alternative path of reasoning and conclude that the deductions of any amounts to which s 470(1) applies are “authorised by or under” a law of the Commonwealth within the meaning of s 324(1)(d).

203    In respect of the Field Loading Allowance, because s 470(1) is engaged, those amounts were not “payable” under s 323(1). Accordingly, this did not result in a contravention of s 323(1).

204    In respect of the Transport Allowance, as s 470(1) was not engaged, the respondent contravened s 323(1) by making each deduction and thus failing to pay those amounts to the affected employees. No other basis for withholding those amounts was suggested by the respondent and (as I have said) it was common ground between the parties that those payments otherwise fell within s 323(1). It was also common ground that this breach is best characterised as one single contravention under s 557 of the FWA, which I accept.

Conclusion and orders

205    As I have said, this hearing was confined to dealing with the questions necessary to determine the issues of liability. I have answered those questions in the orders which appear at the outset of my reasons in a manner that reflects my conclusions on those issues.

206    The question of any consequential orders will fall for consideration in light of my decision on that issue and the further submissions to be advanced by the parties. I have made procedural orders to accommodate those matters.

Associate:

Dated: 13October 2026