Qube Offshore Services Pty Ltd v

[2025] FWCFB 139

[2025] FWCFB 139

The attached document replaces the document previously issued with the above code on 7 August 2025.

·   Application type corrected.

Associate to Deputy President Cross

Dated 11 August 2025

[2025] FWCFB 139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.269 - Bargaining related workplace determination

Qube Offshore Services Pty Ltd
v

Australian Workers' Union

(B2025/535)

DEPUTY PRESIDENT CROSS

COMMISSIONER CRAWFORD
COMMISSIONER SLOAN

SYDNEY, 7 AUGUST 2025

QUBE OFFSHORE SERVICES PTY LTD WORKPLACE DETERMINATION 2025

Intractable bargaining workplace determination – no existing enterprise agreement – complicated assessment of current conditions – parties considerably apart in terms of what rates should be included – wage rates and wage increases determined – income protection insurance term a permitted matter but not included on merit grounds – workplace determination to be made with parties to settle terms based on the decision.

BACKGROUND

1. This decision concerns the employment conditions for around seven employees of Qube Offshore Services Pty Ltd (Qube Offshore) who perform work on a floating liquified natural gas facility operated by Shell named the Prelude (Employees). The Prelude is located offshore, north-east of Broome in Western Australia. The Employees perform the role of either Store Person or Material Controller. The Material Controller position is more senior and includes responsibility for supervising Store Persons. The Employees currently each have individual employment contracts with Qube Offshore. The Hydrocarbons Industry (Upstream) Award 2020 (Hydrocarbons Award) covers and applies to the employment of the Employees with Qube Offshore. The Employees are not currently covered by an enterprise agreement in relation to their employment with Qube Offshore.

1. Qube Offshore agreed to commence bargaining for an enterprise agreement to cover the employees on 7 June 2024 and issued a Notice of Employee Representation Rights to the Employees on around 10 June 2024.[1] The Australian Workers’ Union (AWU) was a bargaining representative for the Employees. Qube Offshore and the AWU successfully negotiated a range of conditions for the proposed agreement during bargaining meetings held in 2024 and 2025.

1. Qube Offshore and the AWU were not able to reach agreement in relation to the rates of pay that should be contained in the enterprise agreement and were considerably apart in their respective positions. The parties were also unable to reach agreement about an AWU claim regarding income protection insurance. Qube Offshore requested that the Employees vote on a proposed agreement in around February 2025. Each Employee voted against approving Qube Offshore’s proposed agreement.

1. Qube Offshore applied for an intractable bargaining declaration on 1 April 2025. The making of a declaration was supported by the AWU. The Fair Work Commission (Commission) issued an intractable bargaining declaration in relation to the proposed agreement on 8 April 2025. A post-declaration negotiating period was not sought by the parties and was not specified in the declaration. The Commission’s decision records the outstanding matters between the parties as:

• Rates of pay and wage increases.

• Sign-on bonus.

• Income protection.[2]    

1. The making of an intractable bargaining declaration triggers the obligation in s.269 of the Fair Work Act 2009 (FW Act) for the Commission to make an intractable bargaining determination “as quickly as possible.”

1. Directions were issued for the filing of material by Qube Offshore and the AWU and hearings were listed in Sydney on 7, 8, 9 and 28 July 2025. Both parties were granted permission to be represented by lawyers at the hearings on the basis that this would enable the matter to be dealt with more efficiently.

1. The evidence tendered by the parties during the hearing is outlined in Schedule A to this decision. Mat Upton (General Manager – Qube Energy), Douglas Heath (AWU Offshore Alliance Organiser), Wade Burton (Qube Offshore – Stores Assistant), and Philip Moorhead (Qube Offshore – Material Controller) were cross-examined on their evidence during the hearings on 8 and 9 July 2025.

1. We have considered all the evidence, written submissions and oral submissions relied on by Qube Offshore and the AWU.      

STATUTORY PROVISIONS AND AUTHORITIES[3]

1. Section 270(1) of the FW Act sets out a basic rule in relation to intractable bargaining workplace determinations. The section requires that such determinations must comply with s.270(4), include the core terms as set out in s.272, the mandatory terms as set out in s.273 and the agreed terms as provided for in s.274.

1. Section 271 of the FW Act provides that an intractable bargaining workplace determination must not include any terms other than those required by s.270(1). Section 272 also specifies that certain terms are not to be included in a determination.[4]

1. Section 270(2) requires that the determination must include “agreed terms”. The concept of an “agreed term” is defined in s.274(3) as follows:

Agreed term for an intractable bargaining workplace determination

(3) An agreed term for an intractable bargaining workplace determination is:

(a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and

(b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and

(c) if there is a post-declaration negotiating period for the declaration—any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement.

Note: The determination must include an agreed term (see subsection 270(2)

1. As is mentioned above, an intractable bargaining workplace determination must include terms the Commission considers deal with matters still in issue in either of the following circumstances: if there is a post-declaration negotiating period, after the end of that period or, otherwise, after the making of the intractable bargaining declaration.

1. Section 270(4) requires that an intractable bargaining workplace determination be expressed to cover the employer and employees that would have been covered by “the agreement”, and any employee organisation that was a bargaining representative for those employees. The reference to “the agreement” here is a reference to the proposed agreement that is the subject of the intractable bargaining declaration.

1. A determination must also include a term specifying its nominal expiry date (s.272(2)), a disputes settlement term (s.273(2)-(3)), a flexibility term (s.273(4)), a consultation term (s.273(5)) and a delegates’ rights term that is no less favourable than the equivalent term in any modern award that covers a delegate to whom the determination applies (s.273(6)-(7)).

1. There are two other statutory requirements that the terms of any determination must comply with. Those are the requirement in s.272(4) that the determination would, if it were an enterprise agreement, pass the better off overall test in s.193, and the requirement in s.270A(2) that if, immediately before the making of the determination, an enterprise agreement applies to any employee that will be covered by the determination, then any term that deals with matters still at issue must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter. However, that requirement does not apply to a term that provides for a wage increase: s.270A(4).

1. Section 275 of the FW Act contains the considerations which the Commission must take into account in deciding which terms to include in a workplace determination. The section provides as follows:

   Factors the FWC must take into account in deciding terms of a workplace determination

   The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following:

   (a) the merits of the case;

   (c) the interests of the employers and employees who will be covered by the determination;

   (ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;

   (d) the public interest;

   (e) how productivity might be improved in the enterprise or enterprises concerned;

   (f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;

   (g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

   (h) incentives to continue to bargain at a later time.

1. In TWU v Cleanaway Operations Pty Ltd[5] the Full Bench described the Commission’s task in coming to a view as to the terms of a workplace determination as an “objective assessment of the statutory factors and an overall judgment as to an appropriate workplace determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement.”[6]

1. More recently, in NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Mining and Energy Union, Australian Municipal, Administrative, Clerical and Services Union, the Community and Public Sector Union, and Professionals Australia[7] (Transgrid), the Full Bench said in relation to the operation and application of s.275:

   [58] … However, a requirement to “take into account” a set of considerations leaves open what weight or influence each of the particular matters is to have in the decision to be made. Further, none of the factors detailed in s 275 necessarily take on more particular significance than others. For instance, it would be erroneous to approach consideration of the s 275 factors on the premise that the merits of the case under s 275(a) or productivity under s 275(e) are or should necessarily be more consequential or significant than other factors.

   [59] The matters specified in s 275 of the Act are not exhaustive of the considerations that the Commission can have regard to in deciding the terms to be included in a workplace determination. This is apparent from the word “include” in the chapeau of s 275, which allows the Commission the discretion to also have regard to any other relevant matter depending on the particular case. The determination of the Commission will be informed by ss 577 and 578 of the Act, including that the Commission must exercise its powers in a manner that achieves an outcome that is fair and just and that promotes harmonious and cooperative workplace relations. This consideration for the Commission is especially important in the context of an intractable bargaining workplace determination, where clearly bargaining relations between the parties have broken down.

   [60] Some of the factors in s 275 of the Act are reasonably self-explanatory. However, we make (and endorse where previously established by authority) the following observations in relation to the s 275 factors:

   (a) Reference to the “merits of the case” in s 275(a) requires consideration of whether the Commission considers it is appropriate to include the terms proposed in light of the evidence and contentions advanced by the parties. We emphasise, however, that the task in (sic) conducted in the context of determining the outcome of a bargaining processes and not setting minimum terms and conditions of employment for the purposes of a modern award.

   (b) The requirement under s 275(c) to take into account the interests of the relevant employees and employers requires that those interests be identified and taken into account and the Commission must exercise a broad judgment to produce an outcome which is a fair compromise, balancing the legitimate expectations and interests of the employees and employers. 

   (c) Section 275(ca) is a new subclause and requires consideration to be given to the importance to the employer and employees to be covered by the workplace determination of the arrangements and benefits of an existing enterprise agreement the (sic) applies to the employer.

   (d) The “public interest” in s 275(d) refers to matters that may impact the public as a whole and are distinct from the interests of employees and employers who will be covered by the workplace determination and will include, for instance, the achievement (or otherwise) of the objects of the Act, including employment levels, inflation and the maintenance of appropriate industrial standards. 

   (e) The concept of “productivity” in s 275(e) refers to the well-known economic concept of the quantity of outputs relative to the quantity of inputs. Productivity does not, as is often erroneously asserted in media and political discourse, concern the price of inputs such as a labour. Hence, an employer does not have a more productive workplace because its labour costs are lower. The same output at a lesser cost due to reduce (sic) wage or salary levels does not equate to productivity in the sense contemplated by s 275(e).

   (f) The concept of the “reasonableness” of conduct under s 275(f) requires an evaluation of the party’s conduct during bargaining and whether the conduct was rational, logical or excessive. This falls to be assessed, however, against the rights conferred on bargaining parties during enterprise bargaining, including the right to engage in protected industrial action, and the fact that the parties are, to a reasonably wide degree, entitled to conduct the bargaining as they see fit.

   (g) Consideration of incentives to bargain at a later time for the purposes of s 275(h), which is congruent with the encouragement of collective bargaining as an important means to achieve productivity and fairness as an object of the Act, requires an assessment of what substantive provisions are likely to encourage the parties to return to bargaining in the future. It may be relevant, for example, to consider whether the workplace determination leaves matters to be bargained about in the future.

   [61] The Commission is ultimately tasked with assessing the respective positions of the parties as to the terms disputed between them and, by having regard to the mandatory considerations under s 275 of the Act and other relevant considerations, make an objective assessment and overall judgement as to the appropriate terms of a workplace determination that will cover the employees and apply to the parties. In Parks Victoria v Australian Workers’ Union [2013] FWCFB 950; (2013) 234 IR 242, the Full Bench summarised the task of the Commission as follows:

   But the task we are presently engaged in is quite different to the making or variation of an award. As explained by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Curragh Queensland Mining Ltd the task of the Commission in a matter such as this is to assess the respective positions of the parties in relation to the matters at issue and, by reference to the relevant statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of bargaining, had the bargaining concluded successfully. Such an approach does not involve a form of subjective prognostication as to the outcome of the negotiations, but rather involves an objective assessment of the statutory factors and an overall judgement as to an appropriate determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement.

   [62] In an arbitration in relation to the making of a workplace determination, neither party bears an onus of proof in respect of any change from the position pertaining in the most recent enterprise agreement or to establish the desirability of any particular condition or term sought to be included. Insofar as the Commission has a discretion in setting the terms of a workplace determination, the critical factors bearing upon the exercise of that discretion are the matters required to be taken into account by s 275 and the Commission must determine what it considers to be the appropriate outcome in light of the material which is placed before it.[8] (footnotes omitted)

AGREED TERMS

1. Qube Offshore and the AWU have provided a draft workplace determination which sets out the “agreed terms” for the determination. We are satisfied the draft workplace determination satisfies the statutory requirements of the FW Act concerning core terms and mandatory terms.

1. We intend to issue a determination reflecting the draft provided by the parties along with terms reflecting our conclusions reached on the following disputed issues:

• Rates of pay and wage increases.

• Sign-on bonus.

• Income protection.   

INDUSTRIAL HISTORY – WORK PERFORMED BY DIRECT SHELL EMPLOYEES AT HIGHER RATES

1. The industrial history regarding the performance of Store Person and Material Controller work on the Prelude is pivotal to understanding the matters in dispute in this case.

1. Up until 2021, the stores and logistics work on the Prelude was performed by direct employees of Shell. Shell decided to outsource this work in mid-2021. Qube Offshore submitted a tender for this work and was awarded a contract by Shell. The parties have differing views about whether the work performed by the direct Shell employees is identical to that performed by the Employees. At the very least, it is clear there is significant overlap in relation to the work performed by the Employees and the work previously performed by direct Shell employees.

1. The parties also have differing views about the extent of difference between the rates paid to the direct Shell employees, and the rates paid to the Employees. However, it is clear that the employees directly engaged by Shell to perform stores and logistics work received higher pay rates than what is currently paid to the Employees. That is hardly surprising given achieving a reduction in labour costs was undoubtedly a key driver for Shell’s decision to outsource the work. It is also unsurprising that the AWU, as part of an Offshore Alliance with the Maritime Division of the Construction, Forestry and Maritime Union, was not pleased about Qube Offshore employees being engaged to perform stores and logistics work on the Prelude at lower rates than those received by the direct employees of Shell.

1. The AWU attempted to secure what it considers to be the equivalent rates paid to the direct Shell employees in an enterprise agreement for the Employees with Qube Offshore. This has been strongly resisted by Qube Offshore, primarily on the basis that it would result in an extremely substantial increase to the Employees’ current rate of pay, potentially greater than 50% in some cases.

1. This industrial history primarily explains why an intractable bargaining dispute arose between Qube Offshore and the AWU in relation to the proposed enterprise agreement.   

CURRENT RATES OF PAY

1. Identifying the current rates of pay for the Employees has been more complicated in this case because they are not derived from an existing enterprise agreement.

1. Based on materials provided by Qube during closing submissions, it appears the current full-time rates of pay for the Employees are:

Store Person

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$31.46	$29.40	$60.86
Day shift – over cycle	$31.46 x 200%	$29.40	$92.32
Day shift – overtime	$31.46 x 200%	N/A	$62.92
Night shift	$40.58	$29.40	$69.98
Night shift – over cycle	$40.58 x 200%	$29.40	$110.57
Night shift – overtime	$40.58 x 200%	N/A	$81.17

Material Controller

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$36.61	$29.40	$66.01
Day shift – over cycle	$36.61 x 200%	$29.40	$102.62
Day shift – overtime	$36.61 x 200%	N/A	$73.22

1. There does not appear to be any dispute that casual employees currently receive the rates identified above plus a casual loading of 25%.

THE PARTIES’ POSITIONS ON THE INITIAL RATES OF PAY TO APPLY UNDER THE DETERMINATION

1. This case is somewhat unusual in that the percentage wage increases proposed by Qube Offshore in subsequent years of the determination (3 x 5% per year increases) are highly likely to be higher than those sought by the AWU (the greater of 3 x 3% per year increases or Wage Price Index each year). That is of course explained by the fact that the AWU is seeking substantially higher initial base rates of pay than Qube Offshore, which is explained by the industrial history outlined above.   

1. Given the parties have vastly different views about what initial rates of pay should apply under the determination, we will initially determine what initial rates of pay should apply and then turn to the issue of wage increases for subsequent years. However, that approach is adopted for pragmatic reasons. We are conscious that an overall assessment of the appropriate conditions for the determination, including subsequent wage increases, is required.

1. The respective positions of Qube Offshore and the AWU on the initial rates of pay that should be included in the determination are set out below.

Qube Offshore

1. Qube Offshore submits that the initial rates payable under the determination should be based on the current rates identified above, with an increase of 7% in recognition that the Employees have not received a wage increase since they commenced employment with Qube Offshore.

1. The initial full-time rates proposed by Qube Offshore for the determination are:

Store Person

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$33.66	$31.45	$65.11
Day shift – over cycle	$33.66 x 200%	$31.45	$98.77
Day shift – overtime	$33.66 x 200%	N/A	$67.32
Night shift	$43.42	$31.45	$74.87
Night shift – over cycle	$43.42 x 200%	$31.45	$118.29
Night shift – overtime	$43.42 x 200%	N/A	$86.85

Material Controller

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$39.16	$31.45	$70.61
Day shift – over cycle	$39.16 x 200%	$31.45	$109.77
Day shift – overtime	$39.16 x 200%	N/A	$78.32

AWU

Store Person

1. Whereas Qube Offshore proposes one Store Person classification in the determination,[9] the AWU submits that there should be three different classification levels for the Store Person position which differ according to the employee’s level of offshore experience. The AWU raised concerns that if only one Store Person classification is included, Qube Offshore will evade the operation of the determination by engaging employees below the Store Person classification.[10]

1. The initial full-time rates for the three Store Person classifications proposed by the AWU are:

Store Person – Level 1 (Less than 12 months offshore experience)

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$77.25	$7.37	$84.62
Day shift – over cycle	$77.25 x 120%	$7.37	$100.07
Day shift – overtime	$77.25	$7.37	$84.62
Night shift	$77.25 x 120%	$7.37	$100.07
Night shift – over cycle	$77.25 x 140%	$7.37	$115.52
Night shift – overtime	$43.42 x 120%	N/A	$100.07

Store Person – Level 2 (More than 12 months and less than 36 months’ offshore experience)

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$81.11	$7.37	$88.48
Day shift – over cycle	$81.11 x 120%	$7.37	$104.70
Day shift – overtime	$81.11	$7.37	$88.48
Night shift	$81.11 x 120%	$7.37	$104.70
Night shift – over cycle	$81.11 x 140%	$7.37	$120.92
Night shift – overtime	$81.11 x 120%	7.37	$104.70

Store Person – Level 3 (36 months or more of offshore experience)

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$84.97	$7.37	$92.34
Day shift – over cycle	$84.97 x 120%	$7.37	$109.33
Day shift – overtime	$84.97	$7.37	$92.34
Night shift	$84.97 x 120%	$7.37	$109.33
Night shift – over cycle	$84.97 x 140%	$7.37	$126.33
Night shift – overtime	$84.97 x 120%	$7.37	$109.33

Material Controller 

1. The AWU submits that the determination should include one Material Controller classification with initial full-time rates of:

Shift type	Hourly rate	Offshore Allowance	Total hourly rate
Day shift	$92.70	$7.37	$100.07
Day shift – over cycle	$92.70 x 120%	$7.37	$118.61
Day shift – overtime	$92.70	$7.37	$100.07
Night shift	$92.70 x 120%	$7.37	$118.61
Night shift – over cycle	$92.70 x 140%	$7.37	$137.15
Night shift – overtime	$92.70 x 120%	$7.37	$118.61

Unusual features of the parties’ positions in this case 

1. There are several unusual features of the positions advanced by the parties concerning the initial rates of pay that should apply under the determination. The unusual features include:

• Qube Offshore proposes a higher offshore allowance rate than the AWU.

• Qube Offshore proposes higher penalty rate percentages for over cycle work than the AWU.

• Qube Offshore proposes higher penalty rate percentages for overtime work than the AWU.

• Qube Offshore proposes to pay Store Persons at the same rate regardless of their offshore experience, whereas the AWU submits lower classification levels should be included for Store Persons with less offshore experience.

1. The unusual features identified above are obviously explained by the fact that the AWU is submitting that the base rates of pay under the determination should be substantially higher than those proposed by Qube Offshore, with reference to the rates previously paid by Shell to its direct employees.

1. Nevertheless, the vastly different positions on base rates of pay and the unusual features identified above add significant complexity to the task of determining what initial conditions should be included in the determination.   

WHETHER BACKPAY IS A “MATTER AT ISSUE”

1. A further issue that we are required to determine is whether the initial rates of pay in the determination should operate from when the determination is issued, or a prospective date after the determination is issued, or alternatively whether the initial rates should apply retrospectively and provide backpay to the Employees.

1. The AWU argued that the initial rates of pay it proposes should be payable from the date that Qube Offshore agreed to commence bargaining, which was 7 June 2024.

1. Qube Offshore argued that backpay was not a matter “at issue” between the parties for the purposes of s.270(3) of the FW Act and that the Commission does not have jurisdiction to award backpay in the determination.

1. We consider the following evidence indicates that the AWU was pursuing backpay in the proposed agreement, either in the form of rates payable from 7 June 2024, or a sign-on bonus equivalent to the amount of the relevant back-payments, and this was never agreed to by Qube Offshore:

• Mr Heath sent an email to Dan Ortiz (General Manager – Industrial Relations for Qube Offshore) on 5 July 2024 which contained the AWU’s log of claims for the proposed enterprise agreement in the form of a draft agreement. Schedule 1 and Schedule 2 of the AWU’s draft agreement referred to wage rates and allowances increasing on 1 July 2024, 1 July 2025, and 1 July 2026.[11]

• Mr Heath sent an email to Mr Ortiz and Mr Upton on 18 February 2025 which stated the “points of difference remain the salaries/classification levels, backpay/sign-on bonus and income protection.”[12] Mr Heath’s email indicates the AWU was using the terms backpay and sign-on bonus interchangeably.

• Mr Heath provided evidence that on 27 February 2025, Qube Offshore put a proposed agreement to a vote of the Employees, who unanimously voted it down. Mr Heath stated that the AWU opposed the proposed agreement for a number of reasons, including the absence of “backpay.”[13] 

• Zachary Duncalfe (Senior National Legal Officer for the AWU) sent Mr Upton a letter on 25 March 2025 in support of Qube Offshore’s proposed application for an intractable bargaining declaration which had a proposed agreement attached. The proposed agreement identified agreed matters and non-agreed matters. The rates of pay and wage increases in Schedule 1 of the proposed agreement are labelled in red as “Not Agreed.” This indicates the AWU’s position was that the entirety of Schedule 1, including the operative dates of the initial wage rates, was not agreed. In contrast, while Schedule 2 – General Allowances is also labelled in red “Not Agreed”, the content in the table below contains not agreed elements in red and seemingly agreed elements in black. The non-agreed elements are identified as the Offshore Allowance and a Sign-on Bonus.[14]

• The AWU filed a document titled “AWU Preferred Clauses” on 7 June 2025. This document referred to a Sign-on Bonus with a value of “backpay – value of increases from when Qube Offshore agreed to bargain on 7 June 2024.”[15] This is a further indication that the AWU was using the terms backpay and sign-on bonus interchangeably.

• An amended version of the “AWU Preferred Clauses” document was filed prior to the hearings commencing on 7 July 2025. This document referred to the rates of pay and allowances applying from the first full pay period on or after 7 June 2024. 

1. While the AWU’s position has not necessarily been articulated entirely clearly throughout the negotiations and these proceedings, we have not identified any evidence which suggests the AWU ever agreed that employees should not receive backpay, or the payment of a sign-on bonus equivalent to the back-payments.

1. It is also relevant that Qube Offshore and the AWU are in dispute about virtually every aspect of the pay rates and allowances for the determination. There is dispute about what classification levels should be included for the Store Person role and substantial dispute about the minimum rates of pay, penalty rates and allowances. In a context whereby nearly every element of the pay structure is a “matter at issue” between the parties, we consider it is a stretch for Qube Offshore to argue that the operative date of the relevant rates of pay is not also a matter in dispute.

1. The Commission has a statutory obligation to perform its functions in a manner that is “fair and just” and to “avoid unnecessary technicalities”.[16] While we accept the argument advanced by Qube Offshore is available because of positions adopted by the AWU, we do not consider the AWU describing backpay by reference to a “sign-on bonus” in some cases has the effect of meaning that backpay was not a matter in issue between the parties that needs to be resolved.

1. Further, there is no dispute that the “rates of pay and wage increases” are matters in dispute between the parties. A decision about whether the first wage increase should take effect from 7 June 2024, or alternatively from when the determination commences operating, is plainly a decision about the “rates of pay and wage increases” that the Employees should receive under the determination. Qube Offshore’s argument that the meaning of these terms cannot operate retrospectively is not supported by any evidence or authorities. To the contrary, the Commission approves enterprise agreements whereby parties have agreed to wage increases that apply retrospectively extremely regularly. 

1. We find that we have jurisdiction to include backpay in the determination. We will proceed to consider whether backpay should be included in the determination based on the factors identified in s.275 of the FW Act below.

CONSIDERATION – INITIAL RATES OF PAY FOR THE DETERMINATION AND OPERATIVE DATE

1. The matters that we consider are particularly relevant to determining the initial rates of pay for the determination, and the operative date for the initial rates, are identified below.  

Current rates of pay

1. We consider the current rates of pay are important for assessing the merits of the case (s.275(a)) and the interests of Qube Offshore and the Employees (s.275(c)).

1. The AWU ultimately accepted in closing submissions that the Employees’ current rates of pay are a “starting point” for consideration of the initial rates that should be included in the determination. However, the AWU submitted that the fact that the current rates are contained in individual common law contracts rather than an existing enterprise agreement lessens the weight that should be afforded to the current rates.

1. There is force to the AWU’s submission given the statutory regime for the making of intractable bargaining determinations draws a distinction between conditions provided by an enterprise agreement and contractual conditions.

1. Section 270A of the FW Act prohibits a determination from containing a term that is less favourable to an employee and employee organisation than a term of an existing applicable enterprise agreement. The protection offered to employees and employee organisations by s.270A of the FW Act has no operation in relation to common law contractual conditions.

1. Section 275 of the FW Act identifies factors the Commission must take into account when deciding which terms to include in a determination. Section 275(ca) refers to “the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees.” This factor has no operation in relation to arrangements or benefits in a common law contract.

1. However, the other factors that the Commission must take into account under s.275 of the FW Act draw no apparent distinction between the terms of an enterprise agreement and the terms of individual contracts. Further, it is difficult to see how many of the other factors can be practically assessed without focusing significant attention on existing contractual terms and conditions. For example, the Commission must take into account: the merits of the case, the interests of the employers and employees, the public interest, and how productivity might be improved. These matters would typically be assessed by considering the existing conditions of employment and then considering the impact of changes proposed by the respective parties to the existing conditions.

1. We consider the current contractual rates of pay are inevitably a highly influential factor in determining what initial rates of pay should apply in the determination.

Economic indicators

1. It is well established that movements in the Consumer Price Index (CPI), Living Cost Index (LCI), and Wage Price Index (WPI) are important factors in assessing wage rates and wage increases to be included in a workplace determination.[17] These measures are relevant to the merits of the case (s.275(a)) and the interests of the Employees, and to a lesser degree the interests of Qube Offshore (s.275(c)).

1. Mr Upton gave evidence that Qube Offshore first hired employees to work on the Prelude in November 2021.[18] There is no dispute that Qube Offshore has not provided wage increases to any of its employees working on the Prelude since that date.

1. The table below summarises percentage movements in the CPI[19], LCI[20], and WPI[21] from November 2021 to June 2025:

Quarterly Period	CPI – National All Groups	LCI – Employee	WPI – seasonally adjusted
March 2022	2.1%	1.7%	0.7%
June 2022	1.8%	1.5%	0.8%
September 2022	1.8%	2.6%	1.0%
December 2022	1.9%	3.2%	0.8%
March 2023	1.4%	2.0%	1.0%
June 2023	0.8%	1.5%	0.8%
September 2023	1.2%	2.0%	1.3%
December 2023	0.6%	1.1%	1.1%
March 2024	1.0%	1.7%	0.7%
June 2024	1.0%	1.3%	0.9%
September 2024	0.2%	0.6%	0.9%
December 2024	0.2%	0.4%	0.7%
March 2025	0.9%	1.1%	0.9%
June 2025	0.7%	TBC	TBC
TOTAL (non- compounding)	15.6%	20.7%	11.6%

1. It is clear from the figures above that the Employees have faced increased costs of living expenses in recent years and have not received any wage increases to assist them in meeting their increasing costs of living.

1. Qube Offshore referred to Mr Moorhead not being significantly impacted by these increases because he resides in the Philippines. However, we do not consider the fact that Mr Moorhead resides in the Philippines for much of the year lessens the weight we should give to the cost-of-living increases. Mr Moorhead’s situation appears to be an isolated example amongst the Employees and Mr Moorhead is clearly still impacted to a degree by the higher cost of living in Australia, given he works in Australia and has a property in Australia.

1. We consider the economic indicators identified above weigh in favour of including initial rates of pay in the determination that are higher than the Employees’ current rates of pay by a reasonably significant amount.

1. We also consider that the economic indicators identified above weigh in favour of providing backpay for Employees to 7 June 2024 because they have endured higher costs of living in recent years and have not received a wage increase.

Comparable rates in the industry

1. The AWU’s case focused heavily on comparable rates of pay for other employers in the offshore industry.

1. We accept that comparable rates in the industry are relevant to the merits of the case (s.275(a)) and the interests of Qube Offshore and the Employees (s.275(c)).  

1. Mr Heath provided detailed evidence about rates of pay for other employees in comparable roles to the Employees, with reference to relevant enterprise agreements.

1. At a high and general level, Mr Heath provided evidence that:

• Employees of Shell performing similar work would receive total remuneration packages of around $210,000 to $285,000 per year.[22]

• Woodside pays stores and logistics employees fixed remuneration of around $250,000 to $300,000 per year.[23]

• Modec pays employees performing stores and material controller work a salary of around $250,000 per year.[24]

• INPEX pays stores and logistics employees fixed remuneration of around $250,000 per year.[25]

• Chevron pays employees performing stores and logistics work a salary of at least $246,000 per year.[26]

• Jadestone pays its Material & Logistics Coordinators an annual salary greater than $200,000 per year.[27]

• BW Offshore pays stores and material logistics coordinators a salary of around $230,000 per year.[28]

• Other contractors working on the Prelude pay employees in stores and logistics classifications salaries of between $183,000 and $241,000.[29]  

1. Mr Heath provided evidence that many of these higher salary rates are paid in circumstances where the relevant employees work less shifts per year than the Employees working for Qube Offshore.

1. Mr Heath’s calculations were heavily scrutinised during cross-examination and some flaws in Mr Heath’s calculations were exposed.

1. The AWU also relied on documents produced by Qube Energy Pty Ltd which contain base rates of pay for onshore employees working in Darwin.[30] The documents indicate the base rates of pay for onshore employees performing Material Controller, Store worker and Logistics Coordinator roles range from around $40 per hour to around $45 per hour. However, these employees do not receive an offshore allowance. The documents also indicate the employees may be covered by the Storage Services and Wholesale Award 2020 rather than the Hydrocarbons Award. 

1. Mr Heath’s cross-examination highlighted the inherent difficulty in comparing rates between different employers which operate with different roster patterns and different remuneration arrangements. The difficulties that can arise when attempting to compare rates and conditions across different businesses has previously been acknowledged by the Full Bench in Transgrid.[31] In this case, the difficulties include:

·  There is an array of different approaches to remunerating employees in the industry. This can include a base salary, penalty rates, substantial allowances and bonuses. Some conditions are discretionary. 

·  Qube Offshore pays the Employees based on hourly rates of pay and penalty rates.'  This approach appears unusual for the industry.

·  Roster patterns vary in the industry. Rates of pay are often linked to the roster pattern worked by the relevant employees.

·  Annual leave, travel and training conditions vary across the industry.

·  Position descriptions and classification structures vary. Employees performing stores and logistics work are classified in a variety of ways across the industrial instruments.

·  Even comparing Qube Offshore’s current rates with the rates previously paid by Shell to its direct employees performing stores and logistics work is complicated because the conditions of employment were contained in contracts of employment that contained wording that arguably gave the Shell the right to unilaterally remove financial benefits.[32]         

1. Despite the difficulties referred to above, we accept that Mr Heath’s analysis of the various industrial instruments demonstrates that the current rates of pay for the Employees are at the lower end of rates paid to employees performing comparable work in the industry. Mr Heath’s analysis demonstrates it is common for employees performing stores and logistics work to have guaranteed earnings of between $200,000 and $300,000 per year, despite working less shifts per year than the Employees. Qube Offshore did not proactively present evidence or alternative calculations to argue that its rates are higher than other comparable employers in the industry. Qube Offshore focused on identifying issues with the calculations undertaken by Mr Heath.

1. However, we also accept Qube Offshore’s submission that it is relevant that Mr Moorhead is an experienced offshore employee, and he accepted employment with Qube Offshore on the current terms and conditions. It is also apparent that Qube Offshore was able to recruit other employees to perform the Store Person and Material Controller roles on the current rates and conditions. Further, there is no evidence of regular turnover amongst Qube Offshore’s employees working on the Prelude, despite the current rates of pay. Mr Burton gave evidence that he works alongside other Store Persons who have continued working for Qube Offshore on the current conditions and without receiving a pay rise over the last four years.[33] This all suggests that Qube Offshore’s current rates are not at a level that is so low that it cannot attract qualified workers to fill the positions.

1. Qube Offshore and the AWU focused a substantial amount of attention on the nature and complexity of the duties performed by the employees in the Material Controller and Store Person roles. As is often the case in these matters, Qube Offshore sought to downplay the complexity and requirements of the roles and the AWU strongly contested those arguments. We consider it is clear the Employees perform important and responsible roles on the Prelude and that they work in challenging conditions. However, we do not consider an extensive analysis of the duties performed by the Employees and the duties performed by other employees in the industry is overly helpful in terms of deciding what rates should be included in the determination. As Qube Offshore submitted, we are not setting industry standards or making a work value assessment when making the determination. We are resolving the matters at issue between the parties based on the factors identified in s.275 of the FW Act.

1. We ultimately consider that a comparison of Qube Offshore’s rates of pay with other comparable employers in the industry is a factor that weighs in favour of including initial rates of pay in the determination that are higher than the Employees’ current rates of pay by a reasonably significant amount.

1. We reject the AWU’s argument that the current rates of pay should be substantially increased to achieve parity with rates paid by other employers in the industry, or to reflect the rates previously paid by Shell to its direct employees. In addition to the difficulties with making appropriate comparisons that are outlined above, we reject the premise of the AWU’s argument about industry standards because we are “determining the outcome of a bargaining process and not setting minimum terms and conditions of employment for the purposes of a modern award.”[34]

Qube Offshore’s financial position

1. The financial position of Qube Offshore is obviously highly relevant to the interests of Qube Offshore in relation to the terms of the determination.

1. Qube Offshore provided financial documents which show the business made a reasonably significant profit for the 2023/24 financial year, but a reasonably significant loss based on the May year-to-date figures for the 2024/25 financial year.[35] Mr Upton confirmed during cross-examination that industrial action taken by the Employees during the 2024/25 financial year contributed heavily to the results.  

1. The AWU tendered Australian Stock Exchange announcements made by Qube on 22 August 2024 and 20 February 2025 which confirm a very strong financial performance from the Qube group of businesses.[36] Qube Offshore relied on the corporate veil in arguing that the financial performance of Qube Offshore should be the sole focus as opposed to the performance of the broader Qube business.

1. Qube Offshore’s relatively poor economic performance during the 2024/25 financial year appears largely linked to protected industrial action taken by the Employees. The costs associated with that industrial action are not recurring costs. The vast resources of the Qube group of companies must be given some weight in the overall assessment of the impact on Qube Offshore. Qube Offshore is quite different from a small corporation operating one business in complete isolation.

1. After considering all the evidence, we do not consider the financial position of Qube Offshore should weigh in favour of lower rates of pay for the determination, or against the awarding of backpay to the Employees.    

Conditions in the Hydrocarbons Award

1. Mr Heath provided evidence that the terms of the Hydrocarbons Award carry little weight in bargaining in the offshore sector because the actual rates paid to employees far exceed the minimum conditions in the Hydrocarbons Award.[37]

1. Although it is clearly correct that employees in the offshore industry in Australia receive well above the minimum rates of pay in the Hydrocarbons Award, we do not consider that means the terms of the Hydrocarbons Award are completely irrelevant to the matters we must assess.

2. We consider it is relevant that the classification structure in Schedule A of the Hydrocarbons Award is based on competencies and duties required rather than length of experience.  

Productivity – s275(e)

1. The AWU did not identify any productivity improvements for Qube Offshore that will arise from the terms of the determination or otherwise. Although in circumstances whereby employees currently work for three consecutive weeks at the Prelude without leaving the site each day, and work night shifts when required, there may be limits to what further productivity improvements, as opposed to cost reductions, can be achieved via the employment conditions of employees. We have no evidence about whether improved technology or machinery has generated productivity improvements for Qube Offshore in recent years. In any event, given the AWU has not identified any productivity improvements, this is a factor that weighs in favour of lower initial rates in the determination and against awarding backpay.  

Conclusion – initial rates

1. We are required to take into account the factors identified in s.275 of the FW Act when deciding which terms to include in the determination.

1. There is no current enterprise agreement covering Qube Offshore and the Employees. That means s.275(ca) of the FW Act is not relevant to our assessment in this case.

1. Qube Offshore and the AWU did not argue that the other party acted unreasonably during bargaining or did not comply with the good faith bargaining requirements. That means s.275(f) and (g) of the FW Act are not relevant to our assessment in this case.

1. We do not consider incentives to bargain at a later time (s.275(h)) to greatly affect our assessment of the initial rates of pay for the determination and whether backpay should be awarded.

1. As to the public interest (s.275(d)), Qube Offshore argued it would be contrary to the public interest to include the initial rates sought by the AWU in the determination because they are dramatically higher than the current rates of pay and may deter future investment. We do not place much weight on that submission. This matter has a unique industrial history. We do not consider our determination regarding the appropriate initial rates of pay is likely to have a significant impact beyond the interests of the parties in this case.

1. We consider the merits of the case (s.275(a)) and the interests of Qube Offshore and the Employees (s.275(c)) to be the critical factors in assessing what the initial rates of pay should be in the determination and whether backpay should be awarded. The lack of productivity improvements is also relevant to the assessment. The main factors we consider relevant to assessing the merits of the case and the interests of Qube Offshore and the Employees have been outlined above.

1. After considering the factors in s.275 of the FW Act, we have decided that:

1. The initial rates of pay for the determination should be the Employees’ current rates of pay with an increase of 7% effective from when bargaining started on 7 June 2024.

1. The rates of pay should be increased by a further 5% effective from when the determination commences operating.

1. We do not consider there is any industrial merit to the current arrangement whereby Qube Offshore does not pay the Offshore Allowance when the Employees work overtime hours. The Employees endure the same working conditions when they work overtime hours that they experience when working ordinary hours and over-cycle shifts. Further in this respect, the Agreed Terms define “Offshore Allowance” as an allowance “for each hour worked while on the Offshore Facility” (our emphasis).[38] Consistently, “Offshore Pay” is defined as the “amount paid when an Employee is considered to be working offshore which includes the applicable Hourly Rate of Pay or Overtime rate of pay, allowances and the Offshore Allowance” (our emphasis).[39] As the AWU submitted, the Agreed Terms appear to provide for the Offshore Allowance to be paid for each hour worked on the Offshore Facility, without distinction between the Hourly Rate and Overtime rate, and it would be incongruous in any event to exclude overtime hours.[40] We determine that the Offshore Allowance should be paid when overtime is worked.

   The approach currently taken by Qube Offshore is to calculate penalty rates on the hourly rates and to then add the Offshore Allowance to that amount. The AWU’s calculations also proceeded on that basis.[41] We will adopt this approach given the position taken by both parties. However, we note this approach is inconsistent with the normal industrial approach to an allowance that is paid to compensate employees for the nature of the work performed in the industry. This type of allowance is normally paid for all purposes and included in penalty rate calculations as per what occurs in the Hydrocarbons Award and many other industry awards. [42]

1. Only one Store Person classification will be included in the determination. However, the determination will contain a term clarifying that the Store Person classification captures employees performing that role, regardless of their level of experience.

1. The following table sets out the minimum rates that will be payable under the determination from 7 June 2024:

Store Person

Shift type	Hourly rate	Offshore Allowance	Rate payable
Day shift	$33.66	$31.46	$65.12
Day shift – over cycle	$33.66 x 200%	$31.46	$98.77
Day shift – overtime	$33.66	$31.46	$98.77
Night shift	$43.42	$31.46	$74.88
Night shift – over cycle	$43.42 x 200%	$31.46	$118.30
Night shift – overtime	$43.42	$31.46	$118.30(

Material Controller

Shift type	Hourly rate	Offshore Allowance	Rate payable
Day shift	$39.17	$31.46	$70.63
Day shift – over cycle	$39.17 x 200%	$31.46	$109.80
Day shift – overtime	$39.17 x 200%	$31.46	$109.80

1. The following table sets out the minimum rates that will be payable from when the determination commences operating, with a 5% increase applied to the 7 June 2024 rates identified above:

Store Person

Shift type	Hourly rate	Offshore Allowance	Rate payable
Day shift	$35.34	$33.03	$68.37
Day shift – over cycle	$35.34 x 200%	$33.03	$103.71
Day shift – overtime	$35.34 x 200%	$33.03	$103.71
Night shift	$45.59	$33.03	$78.62
Night shift – over cycle	$45.59 x 200%	$33.03	$124.21
Night shift – overtime	$45.50 x 200%	$33.03	$124.21

Material Controller

Shift type	Hourly rate	Offshore Allowance	Rate payable
Day shift	$41.13	$33.03	$74.16
Day shift – over cycle	$41.13 x 200%	$33.03	$115.29
Day shift – overtime	$109.80	$33.03	$115.29

1. We consider a 7% increase to the current rates from 7 June 2024 and a further 5% increase effective from when the determination commences operating is appropriate particularly having regard to the fact that the Employees have not received a pay increase since the later of 2022 or when they commenced employment, and inflation has been quite high during that period. We also consider the increases are appropriate after considering the comparable rates paid by other employers in the industry, and the other relevant factors identified above.

1. We agree with Qube Offshore that it would not be appropriate to include a condition described as a “sign-on bonus” in the determination but consider the AWU was using that term interchangeably with backpay during the negotiations based on the evidence outlined above. We do not accept that the AWU ever withdrew a claim for employees to be paid an amount in recognition of the delay between the commencement of negotiations and the making of an enterprise agreement or determination. 

1. We are also conscious that it has been common for the Commission to include backpay in various recent determinations where employees have not received a wage increase for a lengthy period and where the inflation rate has been high.[43] 

CONSIDERATION – FUTURE WAGE INCREASES

1. Qube Offshore submitted that the determination should have a four-year nominal term with a wage increase of 7% from commencement and then further 5% increases per year on the anniversary dates of the determination taking effect.

1. The AWU submitted that the rates of pay and allowances in the determination should increase by 3% or the WPI each year on the anniversary dates of the determination commencing to operate.

1. The positions of the parties in relation to future wage increases must be considered with reference to the fact that we have not adopted the position of either party in relation to the initial rates of pay to apply under the determination. We have not adopted the high initial rates proposed by the AWU. We have also decided to award backpay to 7 June 2024 when this was not proposed by Qube Offshore.

1. We consider it is relevant that the Reserve Bank is forecasting that inflation will be lower over the next few years than it has been in the period from 2022 to mid-2025. Although the Reserve Bank does expect an uptick when cost-of-living measures end in late 2025 and in 2026.[44]

1. After considering the various factors in s.275 of the FW Act, we have decided that the following further wage and allowance increases should apply under the determination:

·  4% effective from 12 months after the determination commences operating.

·  4% effective from 24 months after the determination commences operating.

·  4% effective from 36 months after the determination commences operating.     

1. Although Qube Offshore proposed 5% increases per year for the determination, we have taken account of our decision regarding backpay and our decision to award a total of 12% in increases when the determination takes effect. We consider it is appropriate to reduce the annual increases to 4% given our decision on these matters, and the Reserve Bank’s forecasts for inflation.

1. We consider the wage increases above are appropriate having regard to the merits of the case, the interests of Qube Offshore and the Employees, and the absence of productivity improvements.

1. We are satisfied that the wage increases we have determined will provide an incentive for the parties to bargain at a later time, which may be before or after the determination nominally expires. We note an enterprise agreement made in the future will immediately prevail over the determination, even if the determination is within its nominal term.[45]

CONSIDERATION – INCOME PROTECTION INSURANCE

1. The AWU’s claim for the inclusion of a term in the determination requiring Qube Offshore to pay for income protection insurance covering the Employees evolved substantially prior to the hearing commencing on 7 July 2025. The AWU withdrew claims regarding the nominated broker for the insurance policy and made various other amendments to its proposed clause.

1. In addition to opposing the inclusion of an income protection clause on merit grounds, Qube Offshore argued that the AWU’s proposed clause is not a “permitted matter” and queried whether the AWU’s amended clause could be included to resolve the matters at issue given it was not raised during bargaining.

1. We reject Qube Offshore’s argument that the income protection clause proposed by the AWU is not a permitted matter. That is a novel argument given how common income protection clauses are in enterprise agreements approved by the Commission. It is also novel given the Full Federal Court judgment in Australian Maritime Officers Union v Sydney Ferries Corporation[46] and the Commission’s decision in The Australian Workers’ Union v Telum (QLD) Pty Ltd.[47]

1. However, after considering the various factors in s.275 of the FW Act, we are not satisfied that an income protection clause should be included in the determination. We do not consider the AWU has led sufficient evidence to establish the merit of its claim. We also do not consider we have sufficient evidence to properly weigh the impact of an income protection term on the interests of Qube Offshore and the Employees.

CONCLUSION AND FURTHER STEPS

1. For the above reasons, we have decided to make an intractable bargaining workplace determination in accordance with s.269 of the FW Act. The draft determination provided by the parties meets the requirements of Part 2-5 of the FW Act and should be used as the basis for the final form of the determination. Terms reflecting the conclusions we have reached on the disputed matters will need to be incorporated into the draft determination.

1. We direct the parties to confer and provide the Commission with the final form of the determination for publication within 14 days.

1. If the parties are unable to reach agreement about the final form of the determination, they can seek an urgent conciliation conference by contacting the chambers of the Presiding Member.

DEPUTY PRESIDENT

Appearances:

D Ward, of counsel, instructed by Allens for Qube Offshore.
P Boncardo, of counsel, for the AWU.

Hearing details:

2025.
Sydney (in-person)
7-9 July.
28 July.

SCHEDULE A – EVIDENCE

Qube Offshore

A1      Qube Offshore financial information for the 2023/24 financial year.
A2      Qube Offshore year-to-date financial information for the 2024/25 financial year.

A3Email from Mat Upton (General Manager – Qube Energy) to Shell dated 26 June 2025 concerning the use of Shell documents in the proceedings.

A4Witness statement of Mat Upton dated 6 June 2025.

A5Reply statement of Mat Upton dated 2 July 2025.

A6 Payslip of Patrick Cameron (Qube Offshore Stores Assistant) for 9 to 22 June 2025.

A7Payslip of Virginia Weightman (Qube Offshore Stores Assistant) for 9 to 22 June 2025.

A8Payslip of Virginia Weightman for 27 May 2024 to 9 June 2024.

A9Payslip of Philip Moorhead (Qube Offshore Material Controller) for 10 to 23 June 2024.

A10Payslip of Mark Erkelens (Qube Offshore Materia Controller) for 9 to 22 June 2025.

A11Payslip of Mark Erkelens for 10 to 23 June 2024.

A12FPSO Role Classification Promotion Framework.

A13North-West Shelf Offshore Role Classification Promotion Framework.

A14     Inpex Position Description – Materials Coordinator.
A15     Wade Burton (Qube Offshore Stores Assistant) payslip for 9 to 22 June 2025.
A16     Wade Burton payslip for 10 to 23 June 2024.

A17 Emails between Douglas Heath (Offshore Alliance Organiser) and Che Holmes dated 4 and 12 March 2025 regarding Shell rates.

AWU

R1Qube ASX Announcement 22 August 2024.

R2 Qube ASX Announcement 20 February 2025.

R3Witness statement of Douglas Heath dated 7 June 2025.

R4 Reply statement of Douglas Heath dated 2 July 2025.

R5Further reply statement of Douglas Heath dated 6 July 2025.

R6 Witness statement of Wade Burton dated 7 June 2025.

R7Further reply statement of Wade Burton dated 6 July 2025.

R8 Philip Moorhead statement dated 7 June 2025.

R9 Philip Moorhead further reply statement dated 6 July 2025.

R10Philip Moorhead offer of employment and employment contract from Qube Offshore dated 17 June 2022.

R11 Qube Energy variation of contract letter for Dendy Dipho dated 12 February 2025.

R12 Qube Energy offer of employment and employment contract for Denzel Parnell dated 24 February 2025.

R13 Qube Energy variation of contract letter for Jordan McQueen dated 29 July 2024.

R14 Qube Energy offer of employment and employment contract for Jordan McQueen dated 11 November 2024.

R15 Contracts produced by Shell for the Material Controller position dated 14 July 2015 and for the Stores Assistant position dated 16 April 2018.

[1] Exhibit R3 at [11], DHB page 331.

[2] Qube Offshore Services Pty Ltd v The Australian Workers’ Union [2025] FWC 977.

[3] We have largely adopted the summary provided by the Full Bench in Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd [2025] FWCFB 140.

[4] See subsection (3) and (5).

[5] [2024] FWCFB 287.

[6] At [162].

[7] [2025] FWCFB 73.

[8] Ibid [58]-[62].

[9] Qube Offshore indicated in closing submissions it did not oppose having three levels. However, Qube Offshore’s position throughout bargaining was that there should be one level. In any event, it is clear there is no agreement on what rates should apply to the different levels.

[10] Exhibit R3 at [36], DHB page 333.

[11] Exhibit A4, DHB page 130 and 132; Exhibit R3, DHB page 376 and 378. 

[12] Exhibit R4, page 903 of the DHB.

[13] Exhibit R3 at [24]-[26], DHB page 332.

[14] DHB pages 455 and 456

[15] DHB page 850.

[16] Section 577(1) of the FW Act.

[17] For example, Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 287 at [219].

[18] Exhibit A4 at [10], page 91 of the DHB.

[19] Consumer Price Index, Australia, March Quarter 2025 | Australian Bureau of Statistics

[20] Selected Living Cost Indexes, Australia, March 2025 | Australian Bureau of Statistics

[21] Wage Price Index, Australia, March 2025 | Australian Bureau of Statistics

[22] Exhibit R3 at [45] to [68], DHB page 335 to 337.

[23] Exhibit R3 at [69] to [77], DHB page 337.

[24] Exhibit R3 at [78] to [80], DHB page 338.

[25] Exhibit R3 at [81] to [83], DHB page 338.

[26] Exhibit R3 at [85] to [86], DHB page 338.

[27] Exhibit R3 at [87] to [88], DHB page 338.

[28] Exhibit R3 at [89], DHB page 338.

[29] Exhibit R3 at [92] with reference to M&ISS, Kuiper, and Wood Offshore.

[30] Exhibits R11, R12, R13, and R14.

[31] Transgrid at [137].

[32] Exhibit R15 re the Interim Field Allowance for a Materials Controller and the Offshore Allowance for a Stores Assistant.

[33] Exhibit R6 at [6], DHB page 846.

[34] Transgrid at [60](a).

[35] Exhibit A1 and A2.

[36] Exhibit R1 and R2.

[37] Exhibit R4 at [6] to [10], DHB at page 859 and 860. 

[38] Clause 1.6(o)

[39] Clause 1.6(q)

[40] Transcript, 28 July 2025, PN2248

[41] DHB page 949 and 950.

[42] For example, clause 22.3 of the Building and Construction General On-site Award 2020; clause 18.2 of the Aluminium Industry Award 2020; clause 17.2 of the Asphalt Industry Award 2020; clause 18.2(b) of the Mining Industry Award 2020; clause 19.2(b) of the Oil Refining and Manufacturing Award 2020.

[43] See Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 287 at [236]; Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 305 at [185]; Transgrid at [197]; and Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd [2025] FWCFB 140 at [86].

[44] In Brief: Statement on Monetary Policy – May 2025 | RBA

[45] Section 278(1) of the FW Act.

[46] [2009] FCAFC 145.

[47] [2016] FWC 8496.

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