In the event the Applicant agrees that the name of the Respondent should be "WorleyParsons Engineering Consultancies Co", the Respondent is requested to advise whether it consents to the Commission exercising discretion under s.586 of the Act to amend the name of the Respondent.

Fair Work Commission|2025-11-14

The Applicant is requested to advise whether he agrees that his employer was "WorleyParsons Engineering Consultancies Co", and whether the Commission should exercise its discretion under s.586 of the Act to amend the name of the Respondent.

The Commissioner also seeks the views of WorleyParsons Engineering Consultancies Co in relation to this proposed course of action. The Respondent is therefore directed to serve a copy of this correspondence on an appropriate officer of WorleyParsons Engineering Consultancies Co."

[6] Mr Shehzad provided the following response to the above correspondence:

"Work was performed in Saudi Arabia. Though, I was an employee of Worleyparsons Engineering Consultancies co., its parent company is Worley Limited. Therefore, I am lodging application against the parent company; Worley Limited".

[7] Worley Services responded as follows:

"As Mr Shehzad confirms below, his employer was WorleyParsons Engineering Consultancies Co and not Worley Services Pty Ltd. WorleyParsons Engineering Consultancies Co is a company incorporated and operating in the Kingdom of Saudi Arabia and has no operations in Australia. WorleyParsons Engineering Consultancies Co is not a National System Employer and therefore Mr Shehzad was not a National System Employee as described by the Fair Work Act.

I note Mr Shehzad's comment below that he amends the Respondent company to Worley Limited. Worley Limited is the holding company of the Worley group of entities. Worley Limited was not Mr Shehzad's legal employer and has no connection to Mr Shezhad's employment with WorleyParsons Engineering Consultancies Co."

[8] Attached to its response, Worley Services also provided information in relation to Mr Shehzad's remuneration. I then issued the following correspondence on 2 July 2025:

"Having considered the responses of the parties, the Commissioner's preliminary view is that the Applicant's employer was WorleyParsons Engineering Consultancies Co. This does not appear to be in dispute between the parties.

The proper respondent to an unfair dismissal application is the former employer of an applicant. The Commissioner therefore considers that WorleyParsons Engineering Consultancies Co ought to be named as the Respondent in this matter. The Commissioner is not inclined to amend the application to name Worley Limited as the Respondent in circumstances where the parties agree that Worley Limited was not the Applicant's employer. The Commissioner's preliminary view that any application made against Worley Services Pty Limited or Worley Limited would fail for want of jurisdiction, as these entities were not the employer of the Applicant.

Should the Applicant wish to progress his application in the Commission, he is directed to advise whether he consents to the Commission amending the application under s.586 of the Act to name WorleyParsons Engineering Consultancies Co as the Respondent. The Applicant is directed to respond by no later than 4:00pm (AEST) on Friday, 4 July 2025.

Having considered the Final Settlement document, the Commissioner further enquires as to the remuneration paid to the Applicant, especially noting the quantum and the unfair dismissal high-income threshold. The Commissioner is not aware of the currency paid to the Applicant. The Applicant is directed to reply and provide a copy of the employment agreement governing his employment."

[9] The same day, Mr Shehzad responded as follows:

"I humbly request to keep Worley Limited as the respondent. Though it was not my direct employer, it is the parent company of WorleyParsons Engineering Consultancies Co., and therefore holds the liability. As far as I know, legal cases against the employers go to parent companies.

......... The currency of the settlement is SAR (Saudi Arabian Riyals). As advised, I have attached my contract as well."

[10] The following correspondence was sent to the parties from my chambers:

"Having considered the views of the parties, the Commissioner advises that she will shortly be making a change order, amending the name of the Respondent to "WorleyParsons Engineering Consultancies Co".

The current Respondent, Worley Services Pty Limited, is politely requested to provide contact details for WorleyParsons Engineering Consultancies Co.

The Commissioner's preliminary view is that the Respondent is not a national system employer and the Applicant is not a national system employee, and the employment was governed by the laws of the Kingdom of Saudi Arabia.

The Applicant's attention is drawn to the high-income threshold which was $175,000 at the relevant time. It would appear that the Applicant's salary, inclusive of a Living Allowance was SAR 40,000 per month = SAR 480,000 per annum. Having regard to an average exchange rate of 0.41, this would equate to approximately AUD $196,800. This is an amount greater than the high-income threshold.

The Applicant will be required to file a witness statement and submissions relevant to the high-income threshold jurisdictional issue by no later than 4:00pm (AEST) Tuesday, 8 July 2025."

[11] Mr Shehzad filed a witness statement on 2 July 2025 which confirmed that the Respondent was his employer and argued that his rate of earnings was not in excess of the high-income threshold.

[12] On 8 July 2025, I made an Order pursuant to s.586(a) of the Act,[1] amending the name of the Respondent from "Worley Services Pty Limited" to "WorleyParsons Engineering Consultancies Co". Mr Shehzad then sent the following email:

"May I kindly request to change name to Worley Limited, parent company of wpecc. My request is on the basis that parent company holds legal liabilities."

[13] On 9 July 2025, the following correspondence was sent to the parties:

"The Commissioner has issued the attached Order amending the name of the Respondent to WorleyParsons Engineering Consultancies Co. The Commissioner notes the attached correspondence from the Applicant, seeking to amend the name of the Respondent to Worley Limited. The proper Respondent to an unfair dismissal application is the former employer of the Applicant. Section 382 of the Fair Work Act 2009 states that a person is protected from unfair dismissal if they have completed a period of employment with their employer. The Commissioner will therefore not amend the name of the Respondent to Worley Limited, as that entity was not the Applicant's employer."

[14] The above email also included directions for the parties to file material in relation to the jurisdiction of the application, including whether Mr Shehzad was a national system employee and whether his annual rate of earnings was less than the high-income threshold. The matter was listed for a jurisdictional hearing by Microsoft Teams on 27 August 2025.

[15] Mr Shehzad appeared at the hearing on his own behalf, gave evidence and was cross-examined. The Respondent was granted leave to be represented by Mr Alexander Millman of Mills Oakley Lawyers. Mr Michael Smith, People Director - Saudi Arabia, Bahrain and Egypt gave evidence for the Respondent and was cross-examined.

[16] Section 382 of the Act states as follows:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[17] Section 380 of the Act states that in Part 3-2 of the Act, "employee" means a national system employee, and "employer" means a national system employer. The definitions of "national system employee" and "national system employer" are contained in ss.13 and 14 of the Act respectively. Those sections relevantly provide:

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory."

[18] Section 333 of the Act states that the high-income threshold is prescribed by the Fair Work Regulations 2009 (the Regulations). At the time of Mr Shehzad's dismissal, the high-income threshold was $175,000.

[19] Section 332 of the Act provides as follows in relation to a person's "earnings" for the purposes of the high-income threshold:

(b) amounts applied or dealt with in any way on the employee's behalf or as the employee directs; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997 ) of the employee;

(c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory."

[20] Regulation 3.05 details the calculation of amounts for the purposes of assessing whether the high income threshold applies in relation to a dismissal, and includes r.3.05(6) states:

"When a person is protected from unfair dismissal--high income threshold

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person's employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act."

[21] Mr Shehzad is a Pakistani national. He commenced employment with the Respondent on 3 April 2023 as a Sales Manager pursuant to a work visa. He was responsible for managing bids, proposals and engaging with internal and external stakeholders. This was a non-executive position, and Mr Shehzad reported to senior management.

[22] Mr Shehzad was paid in the Saudi riyal currency (SAR). He stated that his total monthly salary was SAR 40,000, which was inclusive of allowances for housing, transportation and living expenses. He stated he had no written guarantee of annual earnings.

[23] Mr Shehzad stated that the exchange rate between the Saudi riyal and the Australian dollar has been fluctuating and that on many occasions his salary was less than the high-income threshold. He stated that salary in Saudi Arabia cannot be compared to Australian salary "because of different life structure and salary structure".

[24] In evidence given during the hearing, Mr Shehzad confirmed he had never worked in Australia, nor visited Australia. All the duties performed by him for the Respondent were performed in Saudi Arabia. Following his dismissal, he was required to leave Saudi Arabia pursuant to his visa conditions.

[25] He agreed that the written terms of his employment agreement with the Respondent state the following:

The applicable Saudi Arabian Labour Law issued by Royal Decree No. M/51 on 23rd Sha'ban 1426, or any other law to replace it, as well as all other related executive regulations and decisions, and the Employer and the customer by-laws or regulations, shall be an integral part of this contract. The Employee undertakes to abide by the above regulations. Any dispute arising between the Employer and the Employee regarding the implementation of this contract shall be governed by and construed in all respects in accordance with the laws of Saudi Arabia."

[26] Mr Shehzad agreed that he took leave in accordance with the laws of Saudi Arabia. His manager was in Saudi Arabia.

[27] He stated that the Respondent's procedures emanated from Australia. He sometimes did bid work for Australian bids, but it was not the majority of his time. He estimated he performed 70% of work on non-Australian work. He recalls working on an Australian bid for the company, Dyno Nobel. He talked with them on the phone and exchanged emails.

[28] In respect of the living allowance paid to him, he agreed it was fixed and agreed and never changed. He was not required to produce receipts for the accommodation costs he incurred. It was paid to him even when on leave.

[29] Mr Shehzad submitted that the Respondent is a national system employer as he considered that it is involved in various commercial trade activities in Australia. Specifically, Mr Shehzad submitted that the Respondent provides engineering, consultancy and project delivery services in Australia, meeting the definition of a constitutional corporation. Evidence of this was not provided.

[30] Mr Shehzad submitted that the Respondent employs Australian citizens and engages in commercial relationships with Australian businesses and clients. He submitted that the Respondent's workforce contributes to projects and services delivered in Australia. Evidence of this was not provided other than the reference above to Dyno Nobel and an email address of individuals employed by Incitec Pivot.

[31] As Worley Limited, an Australian entity, is the parent company of the Respondent, Mr Shehzad submitted that it ultimately assumes liability on behalf of the Respondent. Accordingly. Mr Shehzad submitted that the Respondent is integrated into the global operations of Worley Limited.

[32] In his role, Mr Shehzad argued that he regularly reported to and interacted with global proposal teams, including those based in Australia, and contributed to Australian-led bids and operations. He submitted that he collaborated remotely with Australian nationals employed by Worley Limited to secure contracts from Australian clients. He argued that this constituted engagement in Australian commercial operations and supports the view that the Respondent is a national system employer.

[33] While acknowledging that his employment contract was executed in Saudi Arabia, Mr Shehzad submitted that it operated under a corporate structure centrally governed from Australia. He submitted that the Respondent engages with clients jointly serviced by Australian Worley teams and shares in the commercial benefit led from Australia.

[34] Arguing that his employment relationship was "in and of Australia" and had a sufficient connection with Australia such that the Respondent is a national system employer, Mr Shehzad referred to the following factors:

The Respondent's corporate structure is fully governed and funded by Worley Limited. The Respondent is a wholly owned subsidiary of Worley Limited. Worley Limited exercises effective managerial and operational control over the Respondent, aligning the Respondent's strategies and service delivery with Australian business interests. Business development platforms and HR tools are centrally managed from Australia.

Throughout Mr Shehzad's employment, the Respondent pursued services for Australian clients, including Dyno Nobel Australia. These engagements were aimed at expanding Australian-affiliated projects in the Middle East.

Mr Shehzad worked on some projects specifically aligned with Australian clients, engaging with Australian-based personnel, using Australian-managed IT systems and business procedures. The work was therefore performed "in and of Australia" and had a sufficient connection to Australia.

An object of the Act is to ensure fair employment standards for workers engaged in business activities that sufficiently touch Australia.

[35] He noted that he was not part of a local entity disconnected from an Australian parent. Rather, the Respondent was an "active extension" of Worley Limited's operational network and part of a "seamless international enterprise". He described the relationship between the two entities as not merely incidental or administrative, but operational and ongoing.

[36] The fact that the Respondent is not a registered foreign corporation under the Corporations Act 2001 was said by Mr Shehzad to be insufficient to exclude the Respondent from the operation of the Act. Similarly, he argued that his residency and citizenship status, as well as the location of the contract acceptance, governing law of the contact, and salary payment currency and location do not negate the connection of the employment relationship to Australia.

[37] Mr Shehzad submitted that his annual rate of earnings was not in excess of the high-income threshold for the following reasons:

a) the historical exchange rate over the past 2.5 years has fluctuated between 0.36 and 0.45, and on many occasions his salary, converted to Australian dollars (AUD), was $172,800;

b) Saudi Arabian salaries often include indirect hardship-related allowances on account of the local standards of living, meaning that direct salary comparisons should be accounted to adjust for this;

Al Khobar, the city in which Mr Shehzad resided, is an industrial city with harsher living conditions; and

d) Mr Shehzad's role did not have executive discretion, he did not make strategic or organisational decisions, and his authority was limited and task-specific.

[38] Mr Shehzad provided a copy of a letter from the Respondent dated 16 April 2025, which outlined his remuneration as follows:

[39] Mr Shehzad argued that the living allowance should be considered "a location-based compensatory payment, not earnings in the ordinary sense", as it was a living subsidy and not performance-based. He noted that the allowance did not increase his wealth, but rather was a cost offset.

[40] Section 332(2)(b) of the Act excludes reimbursements from an employee's earnings. Notwithstanding that the living allowance was paid regardless of actual expenses, Mr Shehzad submitted that it nevertheless functioned as a cost-of-living adjustment and should therefore be treated as a reimbursement. Mr Shehzad argued that the allowance specifically addresses reimbursable costs such as housing, transport and food. He also noted that the Respondent alters the allowance for employees depending on their place of residence, and the Respondent has discretion to withhold or replace the allowance with employer-provided accommodation or transport.

[41] Mr Shehzad therefore submitted that the living allowance should be excluded from the calculation of his annual rate of earnings.

[42] Similarly, Mr Shehzad submitted that the visa and flight allowance is a reimbursement for specific travel expenses and should be excluded from the calculation of his earnings.

[43] Mr Shehzad argued that the non-executive nature of his role is relevant in determining whether his earnings exceed the high-income threshold. He argued that the purpose of the high-income threshold is to exclude genuinely high-earning individuals in positions of authority and bargaining power, and that he did not hold such a role as he lacked executive discretion and independent decision-making authority. Further, he submitted that while he has not named a modern award by which he may have been covered, this does not preclude the Commission from considering whether he may have been covered by one.

[44] Mr Smith is employed by WorleyParsons Bahrain WLL in the role of People Director - Saudi Arabia, Bahrain and Egypt. He manages human resources across the Worley entities in Saudi Arabia, Bahrain and Egypt, and has oversight of the Respondent's human resources functions.

[45] Mr Smith stated that the Respondent is incorporated in Saudi Arabia and is not a registered foreign corporation with the Australian Securities and Investments Commission. It does not engage in trading or financial operations in Australia, maintain an office in Australia or employ any individual in Australia. The Respondent is owned in a 75% shareholding by Worley Engineering Pty Ltd, which is incorporated in Australia and carries on a separate business. Mr Smith stated that the operations between the two entities are distinct, and the Respondent manages its own affairs in Saudi Arabia.

[46] Mr Shehzad was employed under an employment contact executed electronically on 30 November 2022 and physically upon his commencement on 3 April 2023. He was employed in the role of Inside Sales Manager I, performing duties in the Respondent's offices in Saudi Arabia. Mr Shehzad was not required to perform his work from anywhere other than Saudi Arabia, and the Respondent held no record of Mr Shehzad travelling to Australia.

[47] Mr Smith agreed that Mr Shehzad's total monthly remuneration package was SAR 40,204, amounting to SAR 384,448 annually. Mr Shehzad received the living and visa and flight allowances in all circumstances, including during periods of paid leave and his notice period. Mr Shehzad's remuneration was paid into a Saudi Arabian bank account.

[48] Mr Smith stated that the Respondent uses the average exchange rate for a calendar month to determine the exchange rate for the purposes of currency conversion. He stated that the average exchange rate from SAR to AUD for June 2025 was 2.43588 = 1 AUD. Therefore, Mr Shezad's monthly remuneration package converted to AUD was:

[49] Mr Smith provided calculations of Mr Shehzad's total remuneration package based on the exchange rates as at 16 June 2025 on the websites xe.com and wise.com, which returned annual amounts of $196,838.78 and $197,996.66 respectively.

[50] The Respondent issued a demobilisation notice to Mr Shehzad on 17 April 2025, advising that his last working day would be that day. Mr Shehzad did not accrue any leave after this date, and he departed Saudi Arabia on 27 April 2025. Consistent with his employment contract, Mr Shehzad's employment ended at the conclusion of his 60-day notice period on 17 June 2025.

[51] In evidence given during the hearing, Mr Smith stated that Worley has locations in more than 40 countries. Each local entity's risk is controlled at that location. He stated that the parent company did not become involved in day-to-day risk management.

[52] He stated that the Respondent mainly deals with two companies in Saudi Arabia and does not require parent company approval. The instructions he receives from the parent company are minimal.

[53] In respect of the living allowance, if employees are required to be relocated to more expensive areas, the payment can be increased.

[54] Mr Smith noted that while the Worley Whistleblower Standard applied across the various entities, he considers it is good company policy. Any reference to Australian standards only applies to those employed in Australia.

[55] The Respondent submitted that Mr Shehzad's unfair dismissal application ought to be dismissed as he is not a person protected from unfair dismissal because he is not an employee for the purposes of s.382(a) of the Act and his annual rate of earnings exceeded the high-income threshold under s.382(b)(iii).

[56] On the question of whether it is a national system employer, the Respondent submitted that for the Act to apply, the employment relationship must be "in and of Australia", and that this was not the case in respect of its employment of Mr Shehzad. In relation to the high-income threshold objection, the Respondent argued that the living allowance is to be included in the calculation of Mr Shehzad's earnings, meaning his earnings exceeded the high-income threshold.

[57] Section 14(1)(a) of the Act defines a national system employer as a constitutional corporation. A constitutional corporation is one to which paragraph 51(xx) of the Australian Constitution (the Constitution) applies. Paragraph 51(xx) refers to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". The Respondent submitted that the test for whether a foreign corporation is a national system employer is set out in Fair Work Ombudsman v Valuair Limited (No 2) (Valuair).[2]

[58] The Respondent submitted that its relationship with Mr Shehzad did not have the requisite link with Australia and was not at any time "in and of Australia", as contemplated by Valuair. In making this argument, the Respondent identified the following factors:

a) the Respondent is not a registered foreign corporation under the Corporations Act, so cannot lawfully carry on business in Australia;

b) the Respondent does not carry on a business in Australia and does not employ any person in Australia;

at the time his employment contract was executed, Mr Shehzad lived in the United Arab Emirates;

d) Mr Shehzad is not an Australian citizen and, as far as the Respondent is aware, did not travel to Australia or perform work in Australia during his employment;

e) the employment contract was governed by the laws of Saudi Arabia;

f) Mr Shehzad accepted the contract electronically, which was received by the Respondent in Saudi Arabia;

h) Mr Shehzad's remuneration was paid into a Saudi Arabian bank account; and

all work performed by Mr Shehzad was undertaken within Saudi Arabia.

[59] The Respondent submitted that these circumstances are consistent with those in Hatherall v Nestle Oceania (Hatherall),[3] which dealt with an employee employed by a Papua New Guinean entity which was not registered and did not carry out business in Australia but was related to other entities that did carry out business in Australia. This employee performed work exclusively in Papua New Guinea, and the employment contract evidenced no intention that the laws of Australia would apply to it. In Hatherall, the Commission determined that the employer was not a national system employer, notwithstanding its relationship to other national system employers.

[60] The Respondent referred to Mr Shehzad's argument that the relationship between the Respondent and other entities within the same corporate group incorporated in Australia establishes the requisite connection with Australia such that the Respondent is a national system employer. The Respondent submitted that this argument was rejected in Holmes v Balance Water Inc & Ors (No 2) (Holmes).[4] In Holmes, it was held that the employment relationship, not the employer or employee, must have the requisite connection with Australia.

[61] Accordingly, even if the Respondent has a connection to Australia through its relationship with Worley Limited and other Australian entities, the Respondent submitted that this has no bearing on whether Mr Shehzad's employment relationship had the requisite connection with Australia.

[62] The Respondent rejected Mr Shehzad's assertion that it carries on commercial and trading activities within in Australia. In relation to Mr Shehzad's claim that the Respondent employs Australian citizens, the Respondent accepted that while this is occasionally true, it does not determine the governing law of the employment contract or relationship, referring to Baweja v Capital Insurance Group Limited (Baweja)[5] in this regard.

[63] Accordingly, the Respondent submitted that it is not a national system employer, meaning Mr Shehzad is not a national system employee and not protected from unfair dismissal.

[64] The Respondent submitted that it has not been contended that a modern award or enterprise agreement covered Mr Shehzad's employment, meaning ss.382(b)(i) and (ii) of the Act do not apply.

[65] At the time of Mr Shehzad's dismissal, the high-income threshold was $175,000. The Respondent argued that at the time of dismissal, Mr Shehzad's total remuneration was at least $195,840, inclusive of the living allowance. Therefore, the relevant question for the Commission is whether the living allowance is included or excluded from Mr Shehzad's earnings for the purposes of the Act. The Respondent noted that the inclusion or exclusion of the visa and flight allowance is insufficient to be determinative of the issue. The Respondent accepted that if the living allowance is excluded, Mr Shehzad's annual rate of earnings is below the high income threshold.

[66] The Respondent submitted that s.332(1) of the Act provides a list of non-exhaustive inclusions to the meanings of earnings, namely:

(b) amounts applied or dealt with in any way on an employee's behalf or as an employee directs;

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

[67] Section 332(2) then provides a list of exclusions from the meaning of earnings, which are:

(a) payments the amount of which cannot be determined in advance;

(c) contributions to a superannuation fund to the extent that they are contributions to which s.332(4) applies; and

[68] The Respondent submitted that where an amount does not clearly fall within the inclusions in s.332(1) and is not clearly excluded by s.332(2), whether the amount constitutes earnings is to be determined by reference to the ordinary meaning of the word 'earnings'.

[69] The Respondent cited Sam Technology Engineers Pty Ltd v Bernadou,[6] in which 'earnings' was defined as:

"...what an employee receives for the work done by the employee in the course of their employment, rather than an amount paid to an employee to meet an expense incurred by the employee in undertaking such work."[7]

[70] The Respondent accepted that the living allowance does not fall under one of the non-exhaustive inclusions in s.332(1). However, it also argued that the allowance is not excluded as a reimbursement pursuant to s.332(2)(b). The Respondent submitted that the living allowance was paid to Mr Shehzad regardless of whether the relevant expense was incurred and was therefore not a "reimbursement". The Respondent noted that the living allowance was paid during periods of leave, during the period between Mr Shehzad leaving Saudi Arabia and the end of the employment, and as part of Mr Shehzad's contractual compensation for the involuntary termination of his employment.

[71] The Respondent submitted that the living allowance should be treated in the same manner as the Commission has treated "location allowances" and "job allowances". In Kininmouth v Boom Logistics Ltd (Kininmouth),[8] a "location allowance" was determined to be earnings because it was a guaranteed payment the amount of which was known in advance.

[72] In Brittain v BHP Iron Ore Pty Ltd,[9] a "work allowance" was considered earnings. The allowance was paid in consideration of "average working hours, hardship of roster arrangements and all aspects of working at site operations". The Commission found that the allowance was paid by reference to specific matters inherently arising out of the employment contract, was a fixed amount and not determined by reference to actual costs incurred and was guaranteed by the terms of the contract.

[73] The Respondent referred to a number of other cases[10] in which a "zone allowance" or "site allowance" was considered earnings because the allowances were included in annual and personal leave payments. Conversely, in Venning v McConnell Dowell Constructors (Aust) Pty Ltd,[11] a "site allowance" was not included in an employee's earnings because the employer had a broad right to vary or cease payment of the allowance, and it was not payable during periods of leave.

[74] In this matter, the Respondent submitted that Mr Shehzad's contract provided that the living allowance was included in his remuneration, which was comprised of his basic monthly salary and the living allowance. In that sense, the allowance was not a separate item in the contract and was instead incorporated into his remuneration.

[75] In accordance with Mr Shehzad's employment contract, the living allowance was paid "to assist [Mr Shehzad] in meeting accommodation, transport and food costs while residing in the Kingdom of Saudi Arabia" and "to contribute towards the costs associated with accommodation, transport and food". The Respondent submitted that these are personal expenses, and Mr Shehzad's base salary also would have applied to such expenses. The Respondent also noted that it was not empowered to vary or cease the living allowance except where it provided temporary accommodation to Mr Shehzad for a maximum of 30 days.

[76] The Respondent submitted that Mr Shehzad's living allowance should be considered earnings for the following reasons:

a) it was specifically for Mr Shehzad's personal use;

b) it was effectively a cost of living measure to ensure Mr Shehzad's remuneration was appropriate. It was not paid to meet an expense incurred by Mr Shehzad in undertaking his work;

it was payable for as long as Mr Shehzad resided in Saudi Arabia;

d) the Respondent had a very limited ability to not pay the living allowance; and

e) the living allowance was included in all payments made to Mr Shehzad, including leave, payment for notice and compensation for termination.

[77] In response to Mr Shehzad's submissions, the Respondent argued that there is no authority which supports Mr Shehzad's contention that the living allowance should be excluded from his earnings because of the different standards of living between Australia and Saudi Arabia. Further, the Respondent submitted that it is irrelevant to the high-income threshold whether or not Mr Shehzad's role carried executive level discretion. Similarly, the Respondent argued that it is irrelevant that Mr Shehzad did not have a guarantee of annual earnings.

[78] The Respondent therefore submitted that the living allowance should be included in the calculation Mr Shehzad's earnings. The Respondent concluded that Mr Shehzad's annual rate of earnings was at least $195,840, in excess of the high-income threshold of $175,000, and he is therefore not a person protected from unfair dismissal.

[79] In Valuair, Buchanan J set out the test for determining whether a foreign corporation is a national system employer:

"[67] A constitutional corporation (as referred to in s.14(1)(a) of the FW Act) is a corporation to which paragraph 51(xx) of the Constitution applies, including 'foreign corporations.' I accept that each of Valuair and TET is a constitutional corporation.

[68] However, it is clear that s.14(1)(a) cannot be construed to have operation or effect which would render every foreign corporation throughout the world a national system employer, regardless of any connection at all with Australia. Some sufficient connection must therefore be made with Australia, either so far as the constitutional corporations is concerned, or so far as its employees are concerned.

[74] The Respondents argued that in order for the FW Act to apply the applicant must show that the employment relationship itself, between TET and Valuair and their cabin crew employees supplied to Jetstar, may be said to be 'in and of Australia.'

[75] I accept the respondents' contention that the FW Act and the Award apply to employment relationships rather than simply to particular work, so that it is necessary first to identify an appropriate connection linking the employment relationship sufficiently with Australia."

[80] Buchanan J then held the following in respect of the relevant employment relationships:[12]

"TET and Valuair are foreign corporations. Their cabin crew employees are not resident in Australia. The contracts of employment in the present case were made outside Australia and they are regulated by the laws and practices of either Singapore or Thailand. Payment of wages is made and tax, social security and other liabilities on both employer and employee are acquitted outside Australia. Tours of duty commence and finish at the home base outside Australia. The time on duty in Australia of any of the cabin crew represents only a small proportion of overall working time, and is transient.

It is, in my respectful view, incorrect to postulate that the contracts of employment, or the employment relationships, are in and of Australia in any respect. It is also incorrect to postulate that the Award operates on those (overseas) contracts of employment."

[81] The test in Valuair was applied by Driver J in Holmes, where it was held:[13]

"The proper test, as set out Buchanan J, is to link 'the employment relationship sufficiently with Australia' not just the employee or the employer.

In the present case I do not regard the place at which work was to be performed as critical. Ms Holmes had previously performed work in the USA for Balance Water Company between November 2008 and November 2009 and had also performed work in France. There was never any contractual stipulation as to where Ms Holmes was required to work and no evidence of any such stipulation.

More significant facts which weigh in favour of a contractual connection with the USA are the facts that Ms Holmes elected to be paid in US currency in the USA and gave her employment address as being in the USA. Ms Holmes also elected to pay US State and Federal taxes. That election was communicated to the respondents in a series of emails dated between 31 July 2012 and 16 August 2012. Tellingly, these emails were sent by Ms Holmes to Mr Maher immediately before she returned to Australia, of her own accord and for her own purposes, on 21 August 2012. I infer from that fact that Ms Holmes intended her employment relationship to have a substantial link with the USA despite her return to Australia.

The evidence overwhelmingly suggests that Ms Holmes made a deliberate choice to link her employment relationship to the USA and not to Australia."

[82] Mr Shehzad required a visa to perform work in Saudi Arabia. I understand it was obtained pursuant to some earlier employment in Saudi Arabia and then continued with his work with the Respondent. He agreed to perform work in Saudi Arabia, with his employment contract to be governed by the laws of Saudi Arabia.

[83] He was paid in the local currency into his bank account, with relevant deduction of local taxes. He resided in Saudi Arabia and was paid a living allowance to ensure he had adequate accommodation in the locality he was required to work. The living allowance also provided adequate payment for Mr Shehzad to travel and to eat; all personal expenses.

[84] The highest that Mr Shehzad can contend that his employment has a connection in and of Australia is that he sometimes worked with Australian citizens in Saudi Arabia, did a minority of his work on Australian bids and his employer's parent company is an Australian company.

[85] Mr Shehzad and his colleagues performing work in Saudi Arabia for the Respondent are strangers to Australia, albeit performing some work on some Australian bids. They have no greater connection to Australia than employees in foreign lands sewing bikinis that will then be sold in Australian retail stores to women who will wear them on Bondi Beach.

[86] Mr Shehzad was not paid in Australian currency, nor would he have been entitled to superannuation which is paid in Australia to workers performing work in Australia. He would be unable to nominate in which state or territory jurisdiction he would have been employed for the purposes of workers' compensation insurance and payroll tax. I find that the Respondent is not a national system employer within the meaning of s.14(1)(a) of the Act.

[87] I am not satisfied that Mr Shehzad can demonstrate an appropriate connection linking the employment relationship with Australia. I am not satisfied that the employment relationship was "in and of Australia".

[88] Accordingly, the jurisdictional objection is upheld, and the application is dismissed. An

Order [PR793743] to this effect will be published.

[89] If it had been necessary to determine if Mr Shehzad's earnings exceeded the high-income threshold, I would have no hesitation in so finding. The living allowance of SAR 8000 took Mr Shehzad's monthly earnings to SAR 40,000. At an average exchange rate of 0.41, this brings Mr Shehzad's annual earnings to $196,800. To fall under the high-income threshold of $175,000, the exchange rate would need to be at around 0.3645. The rates have not fallen below 0.37 in the period in which Mr Shehzad was employed.[14]

[90] I have had regard to the decision in Kininmouth and my own decision in Seoud v NRA Enterprises Pty Ltd T/A Toy Box Showgirls.[15] I am satisfied the that the living allowance was a fixed amount, known in advance and for the benefit of Mr Shehzad. He could spend all or as little of the allowance as he deemed necessary. It was not a reimbursement for his cost of living and at no time was he required to produce receipts as to his accommodation and other expenses.

Mr Shehzad was not travelling for work in the sense where an employee might be required to do incidental travel and be provided with a daily or weekly travel allowance which would, in that instance, be a reimbursement. The monthly living allowance of SAR 40,000 paid to Mr Shehzad is earnings within the meaning of the Act. If it were necessary to determine, I am satisfied that Mr Shehzad's earnings exceeded the high-income threshold.

A Millman, of Mills Oakley Lawyers, for the Respondent.

[10] Ferguson v Macmahon Contractors Pty Ltd [2015] FWC 1294; Suleski v Rio Tinto Iron Ore Dampier [2015] FWC 1663 and Priddis v Komatsu Australia Pty Ltd [2015] FWC 2406

[14] Exchange-Rates.org, 'Saudi Riyal (SAR) to Australian Dollar (AUD) Historical Exchange Rates' (Web Page, 13 November 2025) .

Printed by authority of the Commonwealth Government Printer

Work Regulations 2009

Guarantee Charge Act 1992

Tax Assessment Act 1997

Muhammad Asim Shehzad v WorleyParsons Engineering Consultancies Co [2025] FWC 3413 (14 November 2025)

Muhammad Asim Shehzad v WorleyParsons Engineering Consultancies Co [2025] FWC 3413

At a glance

Court

Decision date

Source

Judgment (192 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Muhammad Asim Shehzad v WorleyParsons Engineering Consultancies Co [2025] FWC 3413 (14 November 2025)