s.739 - Dispute resolution

Alleged dispute about matters arising under the Woodside Energy Ltd North West Shelf Gas Platforms Enterprise Agreement 2023

• [1] The Australian Workers' Union (Applicant) has made an application for the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure. The Respondent is Woodside Energy Ltd (Respondent).

• [2] The dispute concerns the Woodside Energy Ltd North West Shelf Gas Platforms Enterprise Agreement 2023 (Agreement).

• [3] The employees affected by the dispute are employed by the Respondent to carry out offshore work. The Respondent demobilises employees from its offshore platforms in certain infrequent cyclonic conditions which will or are likely to impact a platform. This practice is intended to ensure the safety of employees.[1]

• [4] During a category three cyclone that impacted the Pilbara region in mid-February 2025 (Cylone Zelia), employees who were rostered to work between 12 February 2025 and 15 February 2025 were:

• demobilised from their respective platforms;
• directed to perform work at the Respondent's Perth office for their normal rostered hours;

• • paid as usual and, in addition, provided with at least the entitlements referred to in clause 12.8 of the Agreement.[2]

• [5] The dispute concerns whether the Respondent is able to direct employees to work in its Perth office if operations are impacted by a cyclone or other adverse weather event which impacts the safe performance of work on a platform.

Dispute settlement term and Commission's jurisdiction

• [6] The Agreement's dispute settlement term is found at clause 25.

• [7] Clause 25 of the Agreement sets out procedures to settle a dispute if it relates to:

• [8] It is not in dispute that the parties have tried to resolve the dispute at the workplace level, by discussions between the employees and management in compliance with clause 25.1(c) of the Agreement and that those discussions did not resolve the dispute. In these circumstances clause 25.1(d) enables a party to the dispute to refer the matter to the Commission.

• [9] Clause 25.1(e) provides that the Commission may deal with the dispute in two stages, first attempting to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation. Clause 25.1(e)(ii) provides that if the Commission is unable to resolve the dispute at the first stage, it may then arbitrate the dispute and make a determination that is binding on the parties. The matter did not resolve via mediation, it is not in dispute that the Commission has the power to arbitrate the dispute,[3] and the matter was therefore listed for hearing after taking into account the views of the parties.

• [10] Both parties sought to be represented by a lawyer. I was satisfied that legal complexity arose in relation to the matter in that the dispute related to the proper construction of the Agreement and that the matter would proceed more efficiently if the parties were assisted by lawyers with an understanding of the relevant legal principles in this regard. As such I granted permission for both parties to be represented by a lawyer pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth)(Act) and both parties were represented by a lawyer at the hearing on 12 August 2025.

• [11] The parties conferred regarding the questions for determination but were unable to reach agreement on a suitable question. The Applicant suggested that the appropriate question for determination was:

1. whether clause 11.9 of the Agreement facilitates employees working from the Respondent's Perth office in the event the Respondent's operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform; or, in the alternative

1. taking in account clause 11.9 of the Agreement, in the event that the Respondent's operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform, can the Respondent direct employees to work from its Perth office?

• [12] The Respondent sought an answer to the question of whether clause 11.9 of the Agreement prevented it from directing its employees to perform work from its Perth office in the event that its operations are affected by the safe performance of work on a platform.

• [13] The Respondent submitted that its proposed question for determination was more appropriate to resolve the substance of the dispute between the parties, being whether the Agreement prohibited it from directing employees to work from the Perth office when they are demobilised during cyclone events.[4] The Respondent submitted its position is not and has not at any time been that the Agreement empowers it to issue such a direction, but rather that it simply does not prohibit or prevent such a direction being issued.[5] The Respondent submitted that even if the questions proposed by the AWU are answered in the negative, there will still be a live issue as to whether the Respondent is empowered (for example under the express or implied terms of the employees' contracts) to issue such a direction which is a matter beyond the scope of the Commission's jurisdiction in this dispute.[6]

• [14] The Applicant indicated it was ultimately seeking to understand what work clause 11.9 has to do and submitted a binary answer on a single prohibition would not address how the clause is intended to apply. During the hearing the Applicant submitted that the Agreement contemplates a mode of working in the event of a cyclone and the task is to establish what the Agreement is positively structured to do. The Applicant clarified that its argument is not just whether the Agreement contemplates working from the Perth office in a cyclone event but that the Agreement has a scheme that positively identifies what will happen in those circumstances.

• [15] The dispute is ultimately about whether the Respondent is able to direct employees to work in its Perth office if operations are impacted by a cyclone or other adverse weather event which prevents the safe performance of work on a platform. The only way in which the dispute is to be genuinely resolved is by answering this question. The powers of the Commission are however limited by the dispute settlement term which enables it to settle a dispute if it relates to:

• [16] As such, the resolution of this dispute is directed toward the Agreement, as distinct from what contractual rights may arise from express or implied terms in individual contracts of employment.

• [17] The Respondent emphasised that that its position is not that clause 11.9 facilitates work in the Perth office in the event of a cyclone or adverse weather event.[7] Rather, its position is that the Agreement does not prohibit or prevent it from issuing a direction to employees to work in the Perth office in these circumstances. The issues that fall within the Commission's jurisdiction and which are relevant to the resolution of the dispute therefore include:

1. considering clause 11.9 and other relevant provisions of the Agreement, whether the Agreement prevents the Respondent from directing its employees to work from its Peth office in the event that the Respondent's operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform.

• [18] The Applicant's position is that, pursuant to the Agreement, employees can only be directed to work in the Perth office when:

1. when an employee is required to undertake a Temporary Operations Transfer in accordance with clause 11.5

• [19] The Applicant submitted that the scheme of the Agreement contemplates that in the event of a cyclone:

• will then remain in a state of readiness to recommence work on the platform once the 'all clear' has been given.

• [20] The Applicant provided the following explanation of the 'scheme' of the Agreement:

• by reason of clause 4(b), the Agreement applies to workers engaged to work on a 'Platform', defined in clause 3 of the Agreement as any one of the Goodwyn Alpha Platform, the North Rankin Complex and the Angel Platform;

• the Agreement pays an annual offshore allowance "designed to compensate the Employee for working offshore on a permanent basis" as per clause 12.4(a);

• • at a macro level, the terms of the Agreement regulate the conditions of workers employed permanently on a Platform and their travel to and from that Platform, including via clause 12.7 which deals with travel to and from the Platform;[9]

• any variation to the agreed mode of work, that being the identified roster cycle on the Platform and the associated travel, is to be found in the Agreement;

• • in the event that a worker is required to train, work, or meet in the Perth office, the Agreement provides the framework for this, with clause 12.8 of the Agreement dealing with training, work or meetings in the Perth office;[10]

• clause 11.9 contemplates circumstances in which a worker would not be utilised as the Agreement broadly intends, that is during a cyclone which the prevents the safe performance of work on a Platform, a worker must be:

• ready willing and able to work, mobilise or de-mobilise; and

• resume duty immediately following the all clear;

• while it could be said that the obligation to be ready, willing and able to work enables work to be done in the Perth office, as facilitated by clause 12.8, this creates immediate conflict between clauses 12.8 and 11.9 as clause 12.8 requires that once the work in the Perth office is concluded, the worker must be flown back to their place of residence, which negates the possibility of them returning to duty immediately and would make compliance with clause 11.9 impossible;

• in order to comply with clause 12.8(a)(l) a worker would need to be flown home once demobilised on the Platform, then flown to the Perth office, then flown back home once the work in the Perth office is complete only then to be flown north ready to resume duty on the Platform. The Applicant submitted this makes little industrial sense and no commercial sense;

• clause 12.8 is not designed to interact with clause 11.9 and cannot facilitate a worker being utilised in the Perth office during a cyclone;

• the language of clause 11.9 is suggestive of a cessation of work until the 'all clear' is given and at clause 11.9(b) the obligation is to resume duty immediately following the all clear, with such resumption necessarily following cessation;

• a worker cannot resume duty after an all clear if they have continued to work during that period and this is coupled with the Agreement obligation that a worker will continue to be paid for the hours "they would have worked" save for the cyclone. The Applicant submitted that this wording clearly contemplates that during a cyclone a worker will be paid for hours not worked, conditional upon readiness and immediate resumption following the 'all clear';

• clause 11.9 is a conventional stand down clause that does not contemplate a worker attending the Perth office, and the language makes no sense if this were to be the case;

• clause 11.9 makes industrial sense as a stand alone clause dealing with a specific set of circumstances;

• the language is unambiguous, and in the context of an Agreement covering offshore work makes contextual sense;

• the Agreement specifically contemplates when work in the Perth office might be carried out by workers covered by the Agreement with clause 12.8 also providing terms that are unambiguous and which make industrial sense;

• • confusion only arises if clauses 11.9 and 12.8 are read together in the context of a Cyclone and the clauses do not interact, create ambiguity and make no industrial sense;[11]

• • had clause 11.9 intended to facilitate work in the Perth office in the event of a cyclone it would have said so. In this regard the Applicant noted that clause 11.4(i)(ii) regulates what happens when bad weather means a worker is unable to travel to a Platform and clearly articulates when the Respondent can have the worker attend the Perth office.[12]

• [21] In summary the Applicant submitted that clause 11.9 is a stand down clause and clause 12.8 is a permissive clause allowing offshore workers to work in the Perth office and they are not designed to work together, either contextually or actually and are industrially distinct.

• [22] Gerard Ransom (Ransom) gave evidence as a witness for the Respondent. Mr Ransom is the Respondent's Vice President of Audit and during his lengthy career with the Respondent has held responsibility for overseeing NorthWest Shelf assets including the North Rankin Complex, Goodwyn Alpha Platform and Angel Platforms (Platforms). The Agreement applies to and is binding upon employees of the Respondent engaged to work on these Platforms.[13]

• • the Platforms are located around 135km offshore from Karratha;[14]

• the workers engaged to operate and maintain the North Rankin and Goodwyn Alpha Platforms are accommodated on the platforms during their on-swing period;

• these workers are transferred to and from the platforms via helicopter from Karratha, which is a flight time of approximately 40 minutes;

• • the employees on these Platforms generally work a 10 week roster involving 12 hour shifts and working 2 weeks on, 2 weeks off, 2 weeks on and 4 weeks off;[15]

• • unlike the North Rankin and Goodwyn Alpha Platforms, the Angel Platform is not permanently crewed, and the Respondent sends out teams of people to conduct maintenance 5 to 10 times per year.[16]

• [24] During cross examination Mr Ransom gave evidence that:

• there would typically be around 100 people at the facility at any point in time;

• there would be around 500 employees required to staff the roster arrangements he described in his evidence, including contractors, and that of these 500 employees 400 would be on an 'off-cycle' at any point in time;

• approximately 20-30 of the 400 workers who would be on an off-cycle would be qualified to perform a role at the ROC in Perth.

• • The North West shelf region of Western Australia is highly susceptible to cyclones and other extreme weather systems with the cyclone season running from around November to April each year.[17]

• • Each platform is designed to tolerate certain levels of wind speed and wave height[18] and during certain cyclonic conditions, i.e. where tolerance levels may be exceeded, it is not safe for employees to remain on the Platforms.[19]

• • While he was in his role of Asset Manager, if there was a cyclone identified which might affect a Platform, a cyclone watch group was mobilised to support the assets.[20]

• • The offshore team would monitor the cyclone to understand how the Platform would be affected by utilising data and forecasts from the Bureau of Meteorology.[21]

• • When a forecast indicated that wind or wave conditions may approach the tolerance thresholds of a Platform, a demobilisation process to remove employees off the Platform would be initiated.[22]

• • Typically, helicopters are used for staged evacuations which must occur before weather conditions make it impossible for helicopters to access the Platforms safely.[23]

• • It can take around three to six days to evacuate the full workforce from North Rankin or Goodwyn.[24]

• • A full demobilisation occurred in February 2025 for Cyclone Zelia which was the first full demobilisation to occur in approximately five years.[25]

• • Prior to final demobilisation of crew from a facility, a "handover of control" to a Perth based team is performed so the Platform's operations can be monitored remotely from the Respondent's Remote Operations Centre (ROC) in Perth.[26]

• • It is important for the operation of the facilities to be constantly monitored so corrective measures can be taken immediately if anything starts to not operate as it should.[27]

• • The ROC is a dedicated room with custom built control panels which have capability to operate the Platforms and equipment which links to the Platform radio systems and CCTV.[28]

• • Remote monitoring allows gas production at the Platform to continue without immediate on-site intervention, provided all systems are stable.[29]

• • Continued operation of the facilities enables ongoing domestic gas production and reduces the requirement for shutdown and startup activities which can introduce additional risks.[30]

• • It is not possible to remotely monitor and operate the Platforms outside of the ROC, e.g. by using a computer or other device from home.[31]

• • Around five people on day shift and five people on night shift are needed to run the ROC for the Goodwyn and North Rankin Platforms.[32] During cross examination Mr Ransom indicated that he obtained this information by speaking to the OAMs on facilities. Mr Goodwin said this typically comprised of four panel operators and one supervisor[33]

• • The ROC in Perth has been used as the remote centre since 2020.[34] Prior to this, there was an ability to remotely operate from Karratha however the Karratha remote operations stations have been decommissioned recently, and the Perth office is preferred to Karratha because Karratha is also impacted by the same cyclones that can affect the platforms.[35]

• • While the Platforms are operational facilities, most employees working on them spend a proportion of their working time in an office-based environment and many of the tasks that employees perform can be performed from Perth while the employees are demobilised such as planning maintenance, preparing work permits and other computer-based tasks.[36] During cross examination Mr Ransom was asked whether this computer based work could be performed from home to which Mr Ransom responded that it could.

• • The primary purpose of the permanent office-based team is to provide support to offshore teams and offshore input into these teams is essential, including in relation to maintenance planning and engineering assessments.[37] During cross examination Mr Ransom was asked what the working hours were for the Perth based workers at the Respondent's office. Mr Ransom said the hours were nominally 8am to 4pm Monday to Friday. Mr Ransom indicated that these Perth based workers were able to work from home 40 per cent of the week.

• • Even outside of cyclonic conditions there are offshore operators and maintainers in the Perth office on a daily basis to support these objectives.[38]

• • Since the introduction of the Agreement, office working requirements have been standardised with all relocated employees being required to work their full 12 hour shift from the Perth office.[39] During cross examination Mr Ransom was asked what changed with the introduction of the Agreement. Mr Ransom responded that the Respondent wanted to standardise working hours. Mr Ransom indicated it took advice in respect of its decision.

• • In the most recent partial demobilisation that he oversaw during the 2023/2024 cyclone season, facility employees who demobilised from the platform were remobilised to Perth and instructed to work their usual 12 hour shift from the Perth office.[40]

• The first full demobilisation since the ROC was established occurred in February 2025 and while he was not involved with the management of the asset at that time, he was advised by current management that:

• the Respondent offered accommodation for anyone based further than 60km from Perth office, plus those required to work in the ROC;

• anyone within 60km of the Perth office was encouraged to discuss with their manager fatigue concerns relating to travel, with accommodation being an option to address this;

• o meal and travel allowances were provided.[41] During cross examination Mr Ransom was asked whether meal and travel allowances were provided to all of the demobilised crew or to interstate workers only and responded that he believed, based on advice from the OAMS, that these allowances were provided to all workers.

• [27] During cross examination Mr Ransom was asked whether the Platforms are shut down for any reason other than a cyclone event and Mr Ransom indicated that the Platforms are shut down for essential maintenance, with a short shut down that is nominally three days occurring every year and a longer shut down occurring every four to five years that would be 20 to 30 days in duration.

• [28] Mr Ransom gave evidence that that if the offshore operations were shut down and operations suspended the following losses and increased costs may arise:

• loss of domestic gas production that may impact on downstream customers if they cannot find alternative suppliers;

• cessation of production at all LNG facilities at the Karratha gas plant, with restart times for these facilities being longer than for domestic gas due to the requirement to cool down equipment after it has warmed up;

• a requirement for significant flaring to re-cool down and start up the LNG facilities as well as diesel use for power generation while fuel gas was not available;

• • a likely need to demobilise non-essential personnel from the Karratha gas plant during this period due to increased operational risks associated with shutdown and start up conditions plus non-normal operation.[42]

• [29] In its response to the application the Respondent submitted that it is not in dispute that the ordinary meaning of clause 11.9 is that during a cyclone or adverse weather event that prevents the safe operation of the platforms Employees must continue to be paid their normal wages and other entitlements even if they are stood down and not redeployed.[43] However the Respondent's position is that neither clause 11.9 of the Agreement nor the Agreement read as a whole prevents it from directing employees to work in its Perth office if operations are impacted by a cyclone or other adverse weather event which impacts the safe performance of work on a platform.[44] The Respondent submitted that this is particularly the case as:

• clause 12.8 of the Agreement provides additional entitlements for employees "required to attend Perth for training, work or meetings";

• clause 11.9 only provides an entitlement to payment in certain circumstances and is, in that sense, facilitative;

• clause 11.9 expressly makes any entitlement to payment contingent on employees being "ready, willing and able to work", suggesting that employees may be directed to work during the period where work cannot be safely performed "on a Platform";

• • there is no express entitlement for employees to refuse to perform work at an alternative location while de-mobilised.[45]

• • the Commission should take a purposive approach rather than a narrow approach in interpreting clause 11.9 and the Agreement in accordance with its ordinary meaning, read as a whole and in context;[46]

• to the extent the Commission considers there is any ambiguity within clause 11.9, evidence of the language of the Agreement more broadly and employees' contracts of employment is admissible to aid the interpretation of the clause;

• the Respondent's template contracts of employment pursuant to which the employees are engaged each contain a term providing the relevant platform as their primary work location, and the Respondent's Perth office as their secondary work location;

• that term in the Respondent's template contract of employment provides the Respondent with the express right to direct an Employee to perform work from another work location based on operational needs;

• • to interpret the 'silence' in clause 11.9 as a restriction on the Respondent's right to exercise its contractual entitlement to issue a direction is an overly technical approach and inconsistent with the accepted fact that there are multiple sources of entitlements that run parallel with the rights contained in an enterprise agreement.[47]

• • directing employees to work in its Perth office if operations are impacted by a cyclone or other adverse weather event which impacts the safe performance of work on a platform is a lawful and reasonable exercise of the Respondent's contractual entitlement and managerial prerogative and the Agreement does not alter this position;[48]

• • the proper construction of the Agreement is that the Respondent retains the right to issue lawful and reasonable directions to employees, including directions requiring redeployment of employees to work in Perth during cyclones and adverse weather events.[49]

• [32] The Respondent submitted that this construction is:

• supported by the express terms of clause 6(a) of the Agreement which provides:

'An Employee will perform all duties that are requested of them provided they are within the Employee's skills, competence and training and that it's safe to do so';[50]

• supported by the term implied by law in all contracts of employment that employers possess a fundamental right to give reasonable directions to employees, provided those directions are lawful and fall within the scope of the employment relationship;[51]

• consistent with the objectives and philosophy expressed in clauses 2.2(b) and (f) of the Agreement which provide:

Together the parties are committed to the following principles:

(b) The adoption of world's best practice health and safety standards.

(f) Subject to other principles in this clause 2.2, maintaining an operating model that achieves the objective of being the lowest unit operating cost as possible, so as to underpin future investment opportunities which will prolong the life of the North West Shelf Project'.

• • there is no clause in the Agreement that expressly prohibits its contractual right to issue lawful and reasonable directions to Employees to perform work from the Perth office in the event that its operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform;[52]

• there is no implied prohibition against redeployment or a requirement that employees perform work during this period, and such an implication is not supported by the text of the Agreement and is contrary to:

• o the parties' express commitment to maintain an operating model that achieves the objective of being the lowest unit operating cost as possible;[53]

• o the parties' express commitment to adopt best practice health and safety standards;[54]

• o the express terms of clause 6(a) of the Agreement,[55] and the employees' fundamental obligation to obey lawful and reasonable directions;[56] and

• o the respondent's managerial prerogative to manage its business in a way it considers to be the most efficient manner, including the ability to make decisions and direct employees within the context of the employer-employee relationship and in accordance with contractual rights.[57]

• • it is well accepted that an employer's managerial prerogative includes managing its business in the way it considers to be the most efficient manner, including the ability to make decisions and direct employees within the context of the employer-employee relationship;[58]

• • this general right is "subject to that prerogative not being exercised unjustly or unreasonably";[59]

• • an exception arises where the employer has constrained itself by "the terms of a contract of employment or a statutory agreement that the employer chooses to make"[60] and here it is not constrained in such a way;[61]

• • if the parties had intended for the Respondent's right to direct employees to work from the Perth office to be prohibited this would be a radical departure from industrial norms and it would be expected that the Agreement would contain explicit and unambiguous wording to that effect;[62]

• interpreting the silence in clause 11.9 to mean the parties could not exercise its right to direct employees to work at an alternative location would eliminate a fundamental employment right by a 'sidewind';

• • the authorities consistently stress the principle that fundamental rights under a contract can only be excluded or diminished by clear terms which unequivocally express the intentions of the parties to do so and are not to be excluded or diminished by indirect means or ambiguous provisions.[63]

• [35] In response to the Applicant's submissions, the Respondent submitted that the Applicant's construction of the Agreement:

• is inconsistent with the commitment and philosophy reflected in clauses 2.2(b) and (f);

• • would prevent the Respondent from directing any employees (including remote operators) to work from the Perth office during a cyclone or adverse weather event which would have the practical effect of requiring the platforms to be shut down, notwithstanding that remote operation from the ROC is possible;[64]

• • would result in significant economic and productivity losses and increased operational costs, noting the evidence of Mr Ransom;[65]

• • would have the practical effect of unnecessarily increasing the frequency of full shutdowns and restarts which would elevate the risk profile of operations and be contrary to the parties' commitment to best practice health and safety standards in clause 2.2(b).[66]

• [36] The Respondent also submitted that the Applicant is advancing an implied prohibition.[67] In this regard the Respondent submitted:

• • For a term to be implied, the term must be reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, capable of clear expression and non-contradictory to the express terms of the contract (Respondent's emphasis).[68]

• • Such an implied prohibition would be directly contrary to clause 6(a) of the Agreement which requires that employees "perform all duties that are requested of them provided they are within the Employee's skills, competence and training and that it is safe to do so".[69]

• • Such an implied prohibition would be inconsistent with the fundamental right of an employer to give lawful and reasonable directions to employees.[70]

• • Whether terms may be implied in enterprise agreements is "doubtful".[71]

• • In any case, implication of terms into an enterprise agreement should be treated with a "high degree of caution" given enterprise agreements are documents voted on and which must be genuinely agreed by both the employer and employees[72] and which are subject to strict statutory approval requirements.[73]

• [37] The Respondent submitted that the Applicant's submissions asserting a conflict between clause 12.8 are unduly technical and divorced from the industrial reality and practical operation of the Agreement.[74] In reference to the Applicant's submission that the Agreement would require a process whereby an employee would need to be flown home, then to Perth and then back home before returning to the Platform, the Respondent submitted this process is artificial and ignores the clear industrial context and practical realties of offshore operations.[75] In relation to clause 12.8 the Respondent submitted:

• • The clear intention of the parties, as reflected in the language and structure of the Agreement, is to provide employees with the benefits and entitlements in clause 12.8 in circumstances where they are required to attend Perth for training, work, or meetings and cannot reasonably return to their residence at the end of each working day.'[76]

• • Clause 12.8 is designed to ensure employees are not financially disadvantaged when required to be away from home or the platform for work related reasons, by providing for overnight accommodation, travel expenses and meal allowances.[77]

• • The clause was not, and was never intended to be, a prescriptive logistical manual requiring Employees to be shuttled back and forth in the manner described by the Applicant and such a reading is a pedantic and overly literal construction that deprives Employees of the benefit of the clause if they are not first flown home once demobilised from the platform during a cyclone and adverse weather event.[78]

• [38] The Respondent emphasised that that its position is not that clause 11.9 facilitates work in the Perth office in the event of a cyclone or adverse weather event.[79] Rather, its position is that clause 11.9 provides an entitlement for employees to continue receiving full payment whether they are ready, willing and able to do so due to cyclonic or adverse weather conditions, in circumstances where it would otherwise be able to stand down employees without pay under s.524(1)(c) of the Act.[80] The Respondent submitted there is no industrial or practical sense in reading clause 11.9 and clause 12.8 together in the manner suggested by the Applicant and nor is there any textual basis for doing so.[81]

• [39] The Respondent submitted that it does make industrial sense, and it is also consistent with the text and purpose of the Agreement, that where the Respondent directs employees to perform work from the Perth office during a cyclone or adverse weather event (and those employees are able to work), those employees are provided with the benefits and entitlements listed in clause 12.8 and will also continue to receive full payment of their remuneration under the Agreement.[82] The Respondent submitted that this approach gives effect to the clear and unambiguous intention of the parties to ensure that employees are reimbursed appropriately when required to attend the Perth office for work, regardless of whether the need arises from training, meetings, or operational requirements, such as during a cyclone.[83]

• [40] During the hearing the Respondent noted that clause 12.7, entitled 'Travel to and from the Platform', deals specifically with travel to and from the Platform with different provisions set out in that clause to deal with two types of contractual arrangements:

• where an employee has a "Place of Residence" clause in their contract of employment or transfer letter, which clause 12.7(a) indicates may be the case if they were hired or transferred into "fly in fly out" roles prior to November 2020 and live elsewhere in Western Australia, other states in Australia and outside of Karratha;

• where an employee does not have an existing contractual "Place of Residence" entitlement.

• [41] The Respondent pointed out that in respect of employees that do not have a contractual "Place of Residence" entitlement, clause 12.7(d) states:

'Woodside will arrange and pay for air travel for Employees between Perth and the Platform'.

• [42] The Respondent submitted that this is missing from the entitlements in clause 12.7 which is applicable when an employee has an existing contractual "Place of Residence" entitlement because a similar clause appears in the contracts that set out the existing contractual "Place of Residence" entitlement.

• [43] During the hearing the Respondent submitted that:

• when clause 12.7 is considered in context and read harmoniously with clause 12.8, clause 12.8 does not require the Respondent to fly an employee home and then back to Perth and so forth;

• rather, clause 12.7 provides that where there are stood down workers working in Perth, the Respondent is obliged to redeploy them to the platform when the all clear is given and those who are no longer on swing get the benefit of economy flight fares between the nearest Major Regional Centre from the employee's residence to Perth at the conclusion of the period they are required to be in Perth for the training, work or meetings.

• [44] The Respondent submitted that when clauses 12.7 and 12.8 are read with clause 6(a) the clear intention is that the Respondent will meet the cost of mobilising and demobilising workers to and from the Platform and, when they are off swing, they will give the workers return fares to the nearest Major Regional Centre from their residence.

• [45] The principles regarding the interpretation of enterprise agreements are well settled. In AMWU v Berri Pty Ltd[84], a Full Bench of the Commission summarised those principles as follows:

"1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."[85]

• [46] In James Cook University v Ridd,[86] the Full Court of the Federal Court of Australia summarised the principles as follows (references omitted):

"(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...".

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry."[87]

• [47] The Full Court of the Federal Court in WorkPac Pty Ltd v Skene[88] articulated the approach to be adopted as follows:

"[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."

• [48] As noted in the decisions referred to above, the starting point in considering the proper interpretation of the Agreement is to consider the ordinary meaning of the words, read as a whole and in context.

• [49] Clause 4(b) of the Agreement provides that it applies to and is binding upon:

'Employees of the Respondent engaged to work on a Platform who are classified within a Job Grade as set out in clause 12.2, including those who are on Temporary Operations Transfer'.

• [50] 'Platforms' is defined in clause 3 to mean 'the Goodwyn Alpha Platform', the North Rankin Complex and the Angel Platform, and 'Platforms' means any one of them.

• [51] As pointed out by the Applicant, clause 12.4 of the Agreement sets out an entitlement to an Offshore Allowance which is 'designed to compensate the Employee for working offshore on a permanent basis'. When these provisions are considered together, I accept that Agreement is generally intended to regulate the conditions of employees employed permanently, offshore on a Platform.

• [52] Clause 11.9 of the Agreement provides:

In the event that Woodside's operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a Platform, Employees will continue to be paid as usual (excluding planned overcycle that is not worked) for the hours they would have worked if they:

(a) are ready, willing and able to work, mobilise or demobilise; and

(b) resume duty immediately following the 'all clear' being announced at Woodside's direction."

• [53] Clause 11.9 does not expressly prevent an employee from being directed to work in the Perth office in the event that operations are affected by a cyclone or other adverse weather event that prevents the safe performance of work on a Platform. However it is the Applicant's position that contextually, the Agreement does prevent such a direction, whereas the Respondent contends that the Agreement does not.

• [54] The Applicant submitted that clause 11.9 is a stand down clause that outlines what will happen in the event of a demobilisation and once this is established all other issues fall away. During the hearing the Applicant submitted that the clause does not make sense if workers are sent to Perth and work 12 hour shifts in Perth as the words 'would have worked' and 'resume duty' in clause 11.9 don't have any work to do in the context of that clause because employees have continued to work throughout.

• [55] It is clear from the ordinary meaning of the words in the clause that facilitation of work from Perth during a cyclone is not the intent of clause 11.9 and the Respondent does not dispute this. Despite this, clause 11.9 has other work to do.

• [56] In terms of legislative context, s. 524(1)(c) of the Act provides that:

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot be usefully employed because of one of the following circumstances:

(a) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

• [57] A stoppage of work caused by a cyclone preventing safe work on the platform would meet the description of a stoppage of work for any cause which the employer cannot reasonably be held responsible.

• [58] As pointed out by the Respondent, section 524(3) of the Act goes on to say:

(1) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.

• [59] Subsection 524(2) of the Act provides that an employer may not stand down an employee under subsection 524(1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot be usefully employed during that period because of that circumstance.

• [60] A note under subsection 524(2) provides that if an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

• [61] Unlike the stand down provision in s.524(1) of the Act, clause 11.9 of the Agreement does not prescribe a right for an employer to stand down employees during a period in which an employee cannot be usefully employed. Nor does it create a stand down process. Rather it identifies a circumstance (i.e. 'operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a Platform') and sets out a conditional entitlement to be 'paid as usual (excluding planned overcycle that is not worked) for the hours they would have worked' in that circumstance.

• [62] Clause 11.9 clearly has work to do in the context of a legislative framework that would, but for the Agreement, permit the Respondent to stand down employees without payment if, in the circumstance of a cyclone or adverse weather event preventing the safe performance of work on a Platform, they could not be usefully be employed by the Respondent at all or where employees do not work their usual hours resulting in detriment to the employee. Its purpose is to ensure that, despite the circumstance identified in the clause, the employees who would ordinarily work on that Platform will not miss out on being paid in respect of the hours they would have worked (excluding planned overcycle that is not worked), provided they meet certain conditions.

What conditions must an employee meet to get the entitlement in clause 11.9?

• [63] To receive the entitlement in clause 11.9 an employee needs to be are ready, willing and able to do the following:

• [64] An employee clearly cannot do all three things at the same time however when they are not mobilising and demobilising, they need to be ready, willing and able to work at the request of the Respondent.

• [65] The next condition is that the employees need to be willing to resume duty immediately following the 'all clear' being announced at Woodside's direction.

Contention that an employee cannot 'resume duty immediately following' the 'all clear' being announced if they have been sent to Perth

• [66] As noted above, clause 11.9 provides a conditional entitlement to payment in an identified circumstance and the Applicant has suggested that being directed to work from Perth negates the possibility of the employees returning to duty immediately to meet the condition in clause 11.9.

• [67] During the hearing the Respondent submitted that this does not mean that employees have to immediately be on the Platform within seconds of the announcement of the 'all clear' but simply have to be in a position to commence remobilisation to the Platform in a fashion that fits within the taxi movements of where they are (i.e. Perth office) and the airport and within the limitations of airline charters.

• [68] A purposive and generous construction should be adopted rather than an overly literal construction that deprives employees of the intended benefit of the clause. Considering the purpose of clause 11.9 it cannot have been intended that employees miss out on the benefit of that clause because they have been asked to do something that their employer requires of them such that they may not be able to commence work 'immediately' after the all clear is given in a literal sense, i.e. because they need to make their way back to the Platform from Perth.

When does the Agreement contemplate working from Perth?

• [69] While clause 4 makes it clear that the Agreement applies to employees engaged to work on a Platform, there are three provisions in the Agreement that specifically contemplate employees working at a place other than the Platform.

• [70] The Respondent pointed to clause 6(a) of the Agreement which provides that an 'Employee will perform all duties that are requested of them provided they are within the Employer's skills, competence and that it's safe to do so'. However, this provision does not refer to the location from where such duties are to be performed.

• [71] The first provision in the Agreement that contemplates work at a place other than the Platform is clause 11.4 which deals with circumstances where the Respondent requests that an employee change panels. Clause 11.4(i) specifically contemplates that the Respondent may request an employee return to the Perth Office in circumstances where weather does not permit flights to a Platform to perform a crew change on a scheduled crew change day.

• [72] The Agreement also specifically contemplates a requirement to work elsewhere in circumstances involving a 'Temporary Operations Transfer' in which case clause 11.5 will apply. Clause 11.5(a) provides that:

'From time to time, Woodside may require an Employee to undertake a Temporary Operations Transfer to another location for a maximum period of 24 months'.

• [73] While the term 'Temporary Operations Transfer' is capitalised, it does not appear to be defined in the Agreement. No party argued that temporarily deploying employees to Perth in the event of a cyclone or adverse weather within the description of a 'Temporary Operations Transfer'.

• [74] As the clause heading suggests, clause 12.8 contemplates training, work or meetings in the Perth office and states:

'(a) If an Employee who lives outside the metropolitan Perth area, and cannot reasonably return to their residence at the end of each working day, is required to attend Perth for training, work or meetings, Woodside will provide:

1. Economy fare flight/s between the nearest Major Regional Centre from the Employee's residence to Perth at the commencement and conclusion of the period the Employee is required to be in Perth for this training, work or meetings;

1. vehicular a travel expenses to a maximum of $230 each way (reimbursed subject to provision of receipts or invoices through Woodside's reimbursement system). Employees who live in Perth will also be entitled to this reimbursement. Where Woodside makes cab charges available, an Employee may elect to use a cab charge rather than reimbursement;

1. where Woodside does not provide a meal, a meal allowance of $153.50 whilst in transit or in overnight accommodation. Meal Allowances will be increased in line with the annual publication of the Australian Taxation Office Tax Determination (TD2023/3 at the making of this Agreement); and

1. for Employees to use their vehicle for travel to the airport or to attend training or meetings, 83 cents per kilometre travelled and for parking expenses (including a car bay at overnight accommodation) and indexed 01 April each year by CPI (reimbursed subject to provision of logbook, receipts or invoices through Woodside's reimbursement system). Employees who live in Perth will also be entitled to this reimbursement. For clarity, an Employee my only claim under clause 12.8(a)(iii) or 12.8(a)(v) for the same journey'.

• [75] Clause 12.8 prescribes a suite of entitlements when an employee is required to attend Perth for training, work or meeting. Read in the Agreement's broader context, and with the Agreement generally regulating the conditions of employees employed permanently on a Platform, clause 12.8 was likely intended to address irregular or occasional attendance in Perth rather than attendance for an extended period as might occur in the case of a Temporary Operations Transfer. However, it does not otherwise set out any limitations regarding when the Respondent can require such attendance.

• [76] The chapeau to clause 12.8(a) suggests that it applies in circumstances where an employee:

• is required to attend Perth for training, work or meetings;

• cannot reasonably return to their residence at the end of each working day.

• [77] In those circumstances, the Respondent 'will provide' the entitlements in the clause.

• [78] Clause 12.8(a)(ii) sets out an entitlement to overnight accommodation.

• [79] Clause 12.8(iv) provides an entitlement is to a meal allowance of $153.50 in circumstances where:

• the employee is in transit or in overnight accommodation; and

• [80] If an employee does live in metropolitan Perth and can reasonably be expected to return to their residence at the end of each working day while they are attending the Perth office, clauses 12.8(a)(ii) and (iv) do not apply to them. This is likely because it was contemplated that the employee can stay at their residence overnight when working in the Perth office.

• [81] Further travel entitlements are set out in:

• clause 12.8(a)(iii) which provides an entitlement to 'vehicular travel expenses to a maximum of $230 each way' which is to be reimbursed subject to the provision of invoices through the Respondent's reimbursement system;

• clause 12.8(v) which provides an entitlement to be paid:

• a cents per kilometre allowance in circumstances where employees use their vehicle for travel to the airport to attend training for meetings; and

• for parking expenses, including a car bay at overnight accommodation.

• [82] Despite the chapeau to clause 12.8(a), clauses 12.8(a)(iii) and 12.8(a)(v) provide that employees who live in Perth may also receive entitlements under these clauses. This is likely because when an employee is working from Perth, they will be using their vehicle in a way that is different to when they work on the Platform or would otherwise be off swing and not rostered to work at all.

• [83] Clause 12.8(a)(i) sets out an entitlement to:

'Economy fare flight/s between the nearest Major Regional Centre from the Employee's residence to Perth at the commencement and conclusion of the period the Employee is required to be in Perth for training, work or meetings'.

• [84] If an employee does live in metropolitan Perth and can reasonably be expected to return to their residence at the end of each working day while they are attending the Perth office, clause 12.8(a)(i) does not apply to them.

• [85] Contention arises concerning the application of clause 12.8(a)(i). The Applicant submitted that while it could be said that the obligation in clause 11.9 to be ready, willing and able to work enables work to be done in the Perth office, as facilitated by clause 12.8, this creates conflict between clauses 11.9 and 12.8. The Applicant contends that to comply with clause 12.8(a)(i) an employee must be:

• be flown home once demobilised on the Platform;

• then flown back home once work in the Perth office is complete;

• then flown north ready to resume on the Platform.

• [86] The Applicant submitted this makes little industrial sense and no commercial sense. The Applicant also submitted this arrangement negates the possibility of them returning to duty immediately as contemplated by clause 11.9.

• [87] The Respondent contended that the clause was not intended to be applied as a prescriptive, logistical manual requiring employees to be shuttled back and forth in the matter described by the Applicant. The Respondent submitted that such a reading is a pedantic and overly literal construction that deprives Employees of the benefit of the clause if they are not first flown home once demobilised from the platform during a cyclone and adverse weather event.[89]

• [88] During the hearing the Respondent also submitted that clause 12.8 does apply if read sensibly as a 'catch all' for employees required to attend Perth for training, meetings or, relevantly, work. The Respondent submitted that it is often the case that workers who are required to attend for meetings will be off swing and the clause will operate by flying the employees to and from their place of residence in those circumstances. However, the Respondent submitted that the clause also works for demobilised workers required to work in Perth because if they are at the end of their swing they will be flown back to their place of residence.

• [89] Clause 12.8 clearly contemplates the employment of people who both live outside the metropolitan Perth area as well as people who 'live in Perth' and provides for different entitlements for each cohort. It seems likely that the Respondent often plans when it sends employees to Perth, such that they are coming to work when off swing which would mean they would not be travelling to Perth part way through their roster when they would normally be on the Platform.

• [90] While the North West shelf region of Western Australia is highly susceptible to cyclones and other extreme weather systems, it is not in dispute that the cyclonic conditions that actually result in demobilisation (category 3 and above) are infrequent.[90] It is unlikely that the parties had this very specific circumstance in mind when travel under clause 12.8 was considered. But nor does it follow that the parties intended to exclude a requirement to work from Perth in this specific circumstance. Rather, the clause is non-prescriptive about when or why the Respondent might require an employee to work from the Perth office and it is likely this was intended so employees receive the benefit of the clause regardless of the circumstances in which the requirement to attend for training, work or meetings is made.

• [91] I accept that a literal, stand-alone application of clause 12.8(a)(i) may result in an employee being shuttled back and forth in a way that may give rise to logistical inefficiency compared to travel directly between the Perth office and the Platform. Clause 12.7(a) clearly contemplates the employment of people who live in states other than Western Australia, and it would be an absurd outcome if an employee who resides in another state was required to be flown back there before they could be returned to the platform. However, a purposive approach is preferred to a narrow or pedantic approach[91] and it is apparent that clause 12.8(a)(i) was only intended to provide an entitlement when people are required to travel between Perth and their residence outside the metropolitan Perth area. In my view it is not intended to have application in circumstances where employees are required to travel between two different places of work, being the Platform and Perth office.

Does the Agreement deal with travel between Perth and a Platform?

• [92] If clause 12.8(a)(i) does not provide the answer, residual questions arise around how employees are to get between two places of work, being a Platform and the Perth office and whether the answers can be found in the Agreement.

• [93] The text above clause 12.7(a) states 'Existing contractual "Place of Residence" entitlement'. Clause 12(a) sets out an acknowledgement that employees hired or transferred into "fly in fly pout" roles prior to November 2020 may have a "Place of Residence" clause in their contract of employment or transfer letter and "may live elsewhere in WA, other states in Australia and outside the City of Karratha".

• [94] Clause 12.7(b) sets out provisions that apply if an employee's contract of employment contains such a clause. This includes clause 12.7(b)(i) which has the effect that travel to Perth will be in the Employee's own time and will be unpaid.

• the Respondent will meet the cost of a return economy flight from the Major Regional Centre or capital city nearest to for employees whose permanent place of residence is located outside of Western Australia to Perth;

• the Respondent will meet the cost of a return economy flight from the closet Major Regional Centre to Perth for employees whose permanent place of residence is located outside of the Perth metropolitan area but within Western Australia.

'Flight bookings will be made based on an Employee's permanent place of residence. The expectation is that Employees will board all flights booked in line with the roster arrangement, Flight bookings will be made in advance and provided on the basis of the optimal flight route to return the Employee to their nominated place of residence as quicky as possible after demobilisation. They will not be subject to temporary or ad-hoc changes except in limited circumstances.'

• [97] It is clear from clause 12.7(b) that it is concerned with fly in fly out employees who fly between their residence outside of Perth and the Platform. Like clause 12.8(a)(i), it is neither designed nor intended to deal with flights between the Platform and Perth when an employee is required to travel from the Platform to work in Perth.

• [98] The text above clause 12.7(d) states:

'No contractual "Place of Residence" entitlement'.

It is apparent that clauses 12.7(d) - (f) that appear below this text were intended to apply in circumstances where an employee does not have a "Place of Residence" clause in their contract.

• [99] Clause 12.7(d) requires the Respondent to 'arrange and pay for air travel for Employees between Perth and the Platform'. The wording of the provision is clear, and the Respondent is required to do what the clause says in respect of an employee does not have a "Place of Residence" clause in their contract.

• [100] In respect of employees who have a contractual "Place of Residence" entitlement, clause 12.7(b)(ii) provides for travel to Perth from an employee's residence but it does not deal with travel from Perth to a Platform.

• [101] As noted above, the Respondent submitted that this is missing from the entitlements in clause 12.7 which is applicable when an employee has an existing contractual "Place of Residence" entitlement because a similar clause appears in the contracts that set out the existing contractual "Place of Residence" entitlement. However, no contracts were provided as evidence to support this submission and in those circumstances, I am unable to make a finding about that.

• [102] I observe that it would seem peculiar to meet the cost of flying between Perth and the Platform for some employees and not others. I also observe that in circumstances where an employee is directed to move between their usual place of work on the Platform and another place of work, s.325 of the Act may be relevant and if it were expected that the employee meet the cost of such travel, it may also impact an assessment of whether any such direction is lawful and reasonable. Such an assessment is outside the scope of the Commission's powers in this dispute and would likely require consideration of the specific circumstances in which a particular direction is made.

• [103] Clauses 11.9 and 12.8(a) are directed at different purposes:

1. In the case of clause 11.9, its purpose is to ensure that, despite operations being affected by a cyclone or other adverse weather event which prevents the safe performance of work on a Platform, the affected employees will not miss out on being paid in respect of the hours they would have worked, provided they meet the conditions set out in this clause.

1. In the case of clause 12.8(a) its purpose is to provide relevant travel, meal and accommodation entitlements when an employee is, on occasion, required to work in Perth office rather than the Platform where they normally work.

• [104] When the clauses are construed with these different purposes in mind, it does not lead to a conclusion that the Agreement was intended to prevent the Respondent from directing its employees to work from its Perth office if operations are affected by a cyclone or other adverse weather event. Rather, a purposive approach supports a construction where clauses 12.8 and 11.9 operate independently to address two different sets of circumstances. It may be the case that these circumstances that exist at the same time in which case the entitlements in both clauses are triggered.

• [105] As noted above, there is no express prohibition on the Respondent issuing a direction to an employee to work from Perth in the Agreement in circumstances where operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform. Further, it cannot be implied from an absence of a specific provision dealing with deployment to Perth in these circumstances that the Respondent is unable to issue such a direction. The text of the Agreement does not support such a construction and nor does not it displace the contractual right to give reasonable directions to employees, provided those directions are lawful and fall within the scope of the employment relationship.

• [106] I have earlier made findings about what work clause 11.9 has to do and have found that the Agreement does not prevent the Respondent from directing its employees to work from its Perth office in the event that the Respondent's operations are affected by a cyclone or other adverse weather event which prevents the safe performance of work on a platform. Considering the limitations of the Commission's jurisdiction, the dispute should be considered resolved on this basis.

• [107] However, the dispute is ultimately about whether the Respondent is able to direct employees to work in its Perth office if operations are impacted by a cyclone or other adverse weather event which impacts the safe performance of work on a platform. Notwithstanding the resolution of the dispute about the Agreement, and as noted by the Respondent, there may still be a live issue as to whether the Respondent is empowered (under the express or implied terms of the employees' contracts) to issue such a direction which is a matter beyond the scope of the Commission's jurisdiction in this dispute.[92] I have earlier observed that whether a direction is lawful and reasonable may depend on the factual circumstances in which the direction is given.

• [108] Having resolved the dispute about the Agreement, the parties may wish to engage in further discussions independently of the Commission to see if they can arrive at a mutual understanding about any contractual rights concerning such a direction and related practical considerations.

[8] Applicant's 'Form F10 - Application for the FWC to deal with a dispute in accordance with a dispute settlement procedure', response to q. 2.1

[10] Applicant's Submissions at [10].

[11] Applicant's Submissions at [11].

[12] Applicant's Submissions at [12].

[42] Respondent's Submissions at [27] with reference to Ransom Statement at [26].

[43] Respondent's Submissions at [20].

[44] Respondent's For Ransom Statement at [19].m F1 Response, response to q. 2.2 at [5]; Respondent's Submissions at [5].

[45] Respondent's Form F1 Response, response to q. 2.2 at [5].

[46] Respondent's Form F1 Response, response to q. 2.2 at [6].

[47] Respondent's Form F1 Response, response to q. 2.2 at [6].

[48] Respondent's Form F1 Response, response to q. 2.2 at [7].

[49] Respondent's Submissions at [17].

[50] Respondent's Submissions at [18].

[51] Respondent's Submissions at [18] with reference to R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44(1938) 60 CLR 601 at 621-622; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union ([2018] FCAFC 77; 2018) 262 FCR 527 at [187]; Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (t/as Mt Arthur Coal) [2021] FWCFB 6059 (2021) 310 IR 399 at [65]- [67].

[52] Respondent's Submissions at [19].

[53] Respondent's Submissions at [21]; Agreement cl 2.2(f).

[54] Respondent's Submissions at [21]; Agreement cl 2.2(b).

[55] Respondent's Submissions at [21] with reference to BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) CLR 266.

[56] Respondent's Submissions at [21].

[57] Respondent's Submissions at [21] with reference to Danica Rochelle Hall v St Bartholomew's House Inc [2022] FWC 591, [46].

[58] Respondent's Submissions at [39] with reference to Danica Rochelle Hall v St Bartholomew's House Inc [2022] FWC 591, [46].

[59] Respondent's Submissions at [39] with reference to Police Federation of Australia v Victoria Police / Chief Commissioner of Police [2015] FWC 924, [21] - [24], cited in United Workers Union v Aspen Pharma Pty Ltd [2021] FWC 4231, [50].

[60] Respondent's Submissions at [39] with reference to Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd, [10].

[61] Respondent's Submissions at [40].

[62] Respondent's Submissions at [41].

[63] Respondent's Submissions at [42] with reference to Dover Fisheries Pty Ltd v Bottrill Research Pty Ltd (1994) 63 SASR 557 at 573.

[64] Respondent's Submissions at [25] - [26].

[65] Respondent's Submissions at [27] with reference to Ransom Statement at [26].

[66] Respondent's Submissions at [29] - [31].

[67] Respondent's Submissions at [32].

[68] Respondent's Submissions at [34] with reference to BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) CLR 266, 282 - 283, applied in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 347; Bunnik v Boeing Defence Australia Ltd [2025] FWC 1442, [21].

[69] Respondent's Submissions at [32].

[70] Respondent's Submissions at [37] with reference to Ex parte Sullivan [1938] HCA 44(1938) 60 CLR 601.

[71] Respondent's Submissions at [34] with reference to Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246, [50] and authorities cited therein; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].

[72] Respondent's Submissions at [35] with reference to Bunnik v Boeing Defence Australia Ltd [2025] FWC 1442, [20].

[73] Respondent's Submissions at [35] with reference to Construction, Forestry, Maritime, Mining and Energy Union (105N) v Flinders Logistics Pty [2022] FWC 2823, [59].

[74] Respondent's Submissions at [43].

[75] Respondent's Submissions at [44].

[76] Respondent's Submissions at [45].

[77] Respondent's Submissions at [45].

[78] Respondent's Submissions at [46].

[79] Respondent's Submissions at [47].

[80] Respondent's Submissions at [47].

[81] Respondent's Submissions at [47].

[82] Respondent's Submissions at [48].

[83] Respondent's Submissions at [49].

[84] [2017] FWCFB 3005.

[86] [2020] FCAFC 123.

[88] [2018] FCAFC 131, 264 FCR 536.

[89] Respondent's Submissions at [46].

[90] Statement of Agreed Facts at [4].

[91] [2020] FCAFC 123.

[92] Respondent's Submissions at [9].

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