1 Fair Work Act 2009 s.424—Industrial action Application by Inpex Australia Pty Ltd (B2026/623) DEPUTY PRESIDENT EASTON SYDNEY, 14 JUNE 2026 Application to suspend or terminate protected industrial action – continuous production process – maintenance bans – bans on loading end produce – threats that protected industrial action will cause production to shut down – consequences for domestic gas supply arrangements and electrical power - endangering life etc. – contingency provisions - threat of significant harm to the Australian economy or an important part of the economy –loss of production – delay of production – economic damage – evidentiary burden – application dismissed. [1] On 10 June 2026 Inpex Australia Pty Ltd made an application under s.424 of the Fair Work Act 2009 seeking orders that protected industrial action currently being taken by officers and members of the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Unions) be terminated. [2] Inpex relies on sub-sections 424(1)(c) and 424(1)(d) of the Fair Work Act 2009. Section 424 is in the following terms: 424 FWC must suspend or terminate protected industrial action—endangering life etc. Suspension or termination of protected industrial action (1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (d) to cause significant damage to the Australian economy or an important part of it. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; [2026] FWC 2200 REASONS FOR DECISION [2026] FWC 2200 2 (iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L— the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. Application must be determined within 5 days (3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made. Interim orders (4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. (5) An interim order continues in operation until the application is determined.” [3] In the present circumstances, sections 424(1)(c) and 424(1)(d) have the following effect: (a) if I am satisfied that protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health, or the welfare of part of the population, I must make an order (per 424(1)(c)); alternatively (b) if I am satisfied that protected industrial action has threatened, is threatening or would threaten to cause significant damage to the Australian economy or in important part of the Australian economy, then I must make an order (per 424(1)(d)). [4] The relevant principles can be summarised as follows1: (a) if I am satisfied that one of the two abovementioned conditions exists, then there is no discretion about what I must do. That is, an order under s.424 does not involve the exercise of a general discretion but rather the discharge of a statutory duty; (b) there must be an appropriate evidentiary basis for making an order, rather than relying on matters of impression or value judgments, particularly when assessing whether circumstances are “threatened”, whether safety and welfare is “endangered”, whether threatened economic damage is “significant” and whether a part of the economy is “important”; (c) in relation to applications relying on endangerment to health and welfare, the impact of the conduct must be more than merely to cause inconvenience to the persons concerned, it must be such as to threaten to expose them to danger; (d) the industrial action must itself be giving an ominous indication of being the direct or reasonably proximate cause of effects that are productive of, or are likely to be productive of a relevant danger, peril or damage to welfare of persons or the economy; (e) the phrase “significant damage to the Australian economy or an important part of it” travels far beyond the notion of merely “significant damage”; [2026] FWC 2200 3 (f) the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances only when significant harm to the whole economy or a significant part of the economy is threatened; (g) the anchor term in s.424(1)(d) is “the Australian economy”, which directs the Commission’s inquiry to whether there is a threat of damage to the whole Australian economy, or to a significant part of the Australian economy; (h) the Commission must start with an economy-wide perspective. If necessary the inquiry might then narrow to only a “part” of the economy. The Commission might consider the impact of protected industrial action nationally, across whole states, whole major cities or across whole industries; (i) the individual interests of the bargaining parties are secondary considerations at best. Economic damage to a bargaining employer caused by the protected industrial action per se is not a relevant consideration. It may be that economic damage to the bargaining employer is also damage to the economy, but the Commission must maintain a clear distinction and consider only the threatened damage to the economy; (j) viewed in isolation, amounts measured in tens or hundreds of millions are substantial. Viewed in the context of the wider Australian economy and the context of the FW Act, such amounts may or may not be “significant”; (k) applications under s.424 must be dealt with expeditiously. In assessing whether threatened damage is “significant” the Commission can assess the order of magnitude of the potential damage without needing to precisely quantify the threatened damage; (l) if an order must be made, it is very much a matter of discretion for the tribunal to suspend or terminate the protected industrial action, so long as one option is chosen; (m) the primary consideration in making an order is to protect the economy or a significant part of it, or to protect the welfare of a part of the population; (n) one consequence of making an order under s.424 is that any other industrial action, including action that does not threaten significant damage to the Australian economy, loses the protection that s.415 otherwise provides (per s.413(7)); (o) as such, making orders about one form of industrial action may dramatically affect a bargaining party’s capacity to take other forms of industrial action; (p) on many occasions the Commission has formulated orders under s.424 by reference to the history of bargaining between the parties and predictions or concerns about future bargaining. That is, in formulating orders under s.424 the Commission has considered matters beyond the avoidance of the dangers described in s.424(1)(c) and beyond the prevention of the damage described in s.424(1)(d); and [2026] FWC 2200 4 (q) in some instances, albeit very limited instances, the Commission has made an order terminating the protected industrial action, for example because it was thought to be the “only way to achieve finality to the dispute”, or to “see the parties move on from the current, longstanding negotiating deadlock”. The Background [5] It is not necessary to describe the evidence in detail, particularly given the time constraints in the legislation. The following extract from Mr Chander’s evidence provides a helpful background: “There are three major components to the Project. The first is the offshore facilities, which comprise the Ichthys Explorer Central Processing Facility (CPF), and the Ichthys Venturer Floating Production, Storage and Offloading facility (FPSO). The CPF receives raw natural gas and condensate from subsea wells and carries out initial processing, separating the gas from the condensate and water and removing impurities so that the gas is clean and dry enough to be safely transmitted through the gas export pipeline. The FPSO receives and processes most of the condensate that has been separated out on the CPF, stores it, and periodically offloads it to tanker vessels for export to market. The second major component is the gas export pipeline, which is an 890-kilometre subsea pipeline connecting the offshore facilities to the onshore processing facilities. In addition to transporting gas from offshore to onshore, the gas export pipeline also serves as a buffer between the offshore and onshore facilities. The pressure within the pipeline can be increased to provide additional buffer capacity, such that if the offshore facilities shut down, there is not an immediate requirement to shut down the onshore facilities. This allows continued onshore production for a period while the pipeline pressure is drawn down. The third major component is the extensive onshore processing facilities at Bladin Point near Darwin… The onshore processing facilities at Bladin Point are where the gas that has been transported from the offshore facilities via the 890-kilometre pipeline is converted into the products that are exported to market. In simple terms, gas arrives at the onshore facility through the pipeline from offshore, and is then processed, liquefied, stored and loaded onto ships for export. The onshore processing facilities comprise a number of interconnected elements, each of which is essential to the safe and continuous operation of the facility. These include: two LNG processing trains … LPG and condensate processing facilities … product storage tanks … A combined cycle power plant . [and] two product load-out jetties.” [6] Protected industrial action commenced on 27 May 2026 pursuant to a notice given to Inpex on 18 May 2026. On 1 June 2026 the Unions gave notice that new and more significant forms of protected industrial action would be taken from 11 June 2026 onwards. [2026] FWC 2200 5 [7] On 10 June 2026 Inpex applied for orders to terminate the protected industrial action. An online hearing took place on Saturday 13 June 2026 on an expedited basis. Inpex led evidence from: (a) Richard Palumbo, who is the Operations Support Manager and who works on the offshore facility; (b) Damien Chandler, who is the Production Superintended working at the onshore facility; (c) Ms Liana D’Ascanio, who is the Manager, Industrial Relations; (d) Mr Charlies Staples, who is the Senior Manager (Commercial) at the Power and Water Corporation in the Northern Territory; (e) Mr Matt Paull, who provided an expert report and has experience in government, and the oil and gas industry; and (f) Mr John Nicolaou, who also provided an expert report and has experience as an economist, policy leader and senior executive working at the Commonwealth and WA Treasuries. [8] The Unions led evidence from Mr Douglas Heath, who is an Offshore Alliance Organiser employed by the Australian Workers’ Union and the Maritime Union of Australia. [9] Each witness was cross-examined, save for Mr Nicolaou. [10] The relevant forms of protected industrial action of concern to Inpex can be placed in 4 categories: (a) 4-hour stoppages of work – initially in the form of 2 x 4 hour stoppages each day, and later revised by the Unions to be 2 x 2 hour stoppages each day; (b) bans on loading and unloading activities, being most significantly bans on loading LNG and other product from the storage tanks onto ships for export; (c) various bans that effectively prevent restarts, includes bans on resetting tripped equipment; and (d) numerous bans and limitations on checking and maintaining equipment and safety systems, including a ban on issuing Area Authority Permits, which prevent the performance of maintenance and repair works. Full Production Stoppage [11] Central to Inpex’s application is the possibility of a full stoppage of production which, it is said, will cause damage to the economy and/or endangerment to part of the population. In other words, Inpex’s application very much hinges on the threat that the protected industrial action will cause a full stoppage of production, which will in turn cause significant economic damage and endanger health and welfare. [2026] FWC 2200 6 [12] I’m satisfied that the bans on loading could have the effect of creating a situation that causes production to stop entirely. [13] The offshore and onshore facilities operate as continuous production processes. As Mr Palumbo said about the onshore facility: “All of the products manufactured at the onshore facility are transported to market via ships. Ships come into the respective product load-out jetty, are loaded with LNG, butane, propane or condensate, and then depart to their destination, which is predominantly in Asia. This means that the onshore facility operates as a continuous production process: gas arrives continuously from offshore, is processed and liquefied continuously, and is stored in tanks until it can be loaded onto ships. The storage tanks are the only buffer in this system once the gas reaches the onshore facility. If product cannot be loaded onto ships quickly enough, the tanks fill up. If the tanks reach their maximum capacity, which is referred to as reaching “tank tops”, there is nowhere to put the product that the facility is continuing to produce, and the facility must be shut down. While there is an ability to reduce production to increase the time before tank tops are reached, however ultimately the onshore facility would need to be shutdown.” [14] On the evidence it seems that the earliest point in time that the onshore facility will reach tank top is 16 June 2026, which assumes Inpex does nothing to slow the flow to the respective tanks. [15] I accept that there are options available to Inpex to delay reaching tank top by controlling the flow rate from the seabed, and/or controlling the flow rate and pressure in the 890km pipeline, and/or the flow rates onshore. Some options to slow production rates are not without difficulty and could lead to increased instability and increase the risk of a full stoppage, at least in the offshore facility. [16] Inpex argued that the protected industrial action, particularly the two-hour stoppages, the ban on issuing area authority permits, the ban on reactivating tripped equipment and similar bans, all increase the risk that other preventable problems on the Project will cause a complete shutdown. Counsel for Inpex submitted that a shutdown “could happen at any moment”. [17] I accept that the risk of a whole-project shutdown is greater because the bans are in place. [18] I accept that the increased risk is more than theoretical and is significant. I can readily infer that the increased risk of a shutdown is the Unions’ intended consequence of the bans and is thought by them to be significant. [19] As such I am satisfied that the protected industrial action now engaged in by members of the two Unions threatens to cause a full production stoppage. [2026] FWC 2200 7 [20] I am satisfied that a stoppage could continue for approximately one week – being from 16 June 2026 until 23 June 2026, noting the possibility that an unattended trip or similar event could bring about a full stoppage earlier than 16 June. [21] Having found that the protected industrial action threatens to cause a full stoppage, I must consider whether this threat engages s.424(1)(c) and/or s.424(1)(d). Section 424(1)(c) [22] If there is a full stoppage at the onshore facility, Inpex will no longer be able to supply gas to the Northern Territory’s Power and Water Corporation (PWC). Inpex said this threatens to endanger a part of the population of the Northern Territory. [23] The gas provided to PWC is extracted from the onshore trains prior to the cooling process. The volume of gas extracted at this point is only a fraction of the gas that is taken from the offshore facility via the pipeline. Importantly, PWC’s gas can only be extracted when at least one onshore gas train is operating. [24] There are options available to Inpex to slow production in order to extend the time that the onshore train(s) operate and supply gas to PWC - if that was to be a priority for Inpex. [25] On the evidence it seems very unlikely that Inpex could extend production to the end of the notification period (23 June 2026) and so it is necessary to assume that at some point between 16 and 23 June 2026 the Project will reach tank top and production will shut down. Thereafter Inpex will not supply domestic gas to PWC’s nearby storage facility. [26] The Commission received evidence in camera of contingency arrangements available to PWC. It is not necessary to disclose these arrangements in this public decision. PWC is already deploying contingency measures in anticipation of a disruption to supply. History shows that these contingency measures are likely to be effective. [27] I’m not satisfied that a full closure from 16 June 2026 until 23 or 24 June 2026 poses a material threat of an interruption to the power supply for the population of the Darwin and Katherine areas. [28] As such, I cannot be satisfied that there is a relevant threat to the safety or welfare of a part of the population. [2026] FWC 2200 8 Section 424(1)(d) [29] The second limb of Inpex’s application is the assertion that protected industrial action, to the extent that it threatens to cause a full production shutdown, threatens to cause significant damage to the Australian economy or an important part of it. [30] Inpex carries the evidentiary burden to provide a proper basis upon which I can be satisfied that the protected industrial action threatens to cause damage to all or part of the economy (per Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125 at [25]-[29], (2014) 244 IR 252 at 262-263). [31] In short, Inpex argued that the value of its daily production is so significant that s.424(1)(d) is engaged if production is stopped. [32] The Commission must, as far as practical, deal with applications under s.424 within 5 days (per s.424(3)). Parties, particularly applicants, must assemble their evidence quickly to fit within these tight timeframes. The Commission can and should recognise this reality and be flexible in how it informs itself about relevant matters (per s.577 and s.590). [33] Conversely, orders made under s.424 have significant consequences for bargaining parties and the Commission must also ensure that respondents have a fair opportunity to understand and test the case that is put against them. [34] Recognising all these matters, Inpex’s evidence of damage to the Australian or Northern Territory economies was not compelling and did not provide an evidentiary basis upon which I could make the requisite finding. [35] Inpex led no direct evidence of the value of its LNG exports. I assume that Inpex knows this information, and it appears that some information was provided by Inpex through its legal representatives to Mr Nicolaou. [36] In his report Mr Nicolaou included information about the “total value of production” in 2025-2026. He then made estimates of the effect of a full stoppage on the Northern Territory and Australian economies – relevantly calculating that a 7 day stoppage would have an impact on the NT economy of -$164.9M and an impact on the Australian economy of -$291M. [37] Inpex’s other expert, Mr Paull, adopted a different approach. It is not clear whether he was provided with Inpex’s actual figures, but he estimated certain prices that Inpex could be receiving for its output and applied those prices to publicly available export volume figures. [38] Mr Paull’s estimate was that the revenue lost if there is a full outage is $300,000 per day and $2.2M per week from lost domestic gas production, and $22.7M per day and $158.7M per week from lost from LNG exports. [39] These figures are estimates made by Mr Paull, based on his 25 years’ experience in government and the oil and gas industry, and based on his estimate of the price Inpex receives for the gas it produces. [2026] FWC 2200 9 [40] Inpex was preparing its application under s.424 from at least 5 June 2026 and, it would seem, provided revenue information to Mr Nicolaou at around that time. Inpex made a forensic evidentiary decision not to disclose the value of its gas production. Inpex also chose not to avail itself of the confidentiality provisions of the Act. As such, I have assumed that the imprecision of Inpex’s evidence is intentional and not the consequence of the tight legislative timeframes of the FW Act. [41] Despite the intentional imprecision of Inpex’s evidence, I am comfortable to assume that the value of Inpex’s gas and LNG production in June 2026 is in the vicinity of $15-22M per day and $120-$160M per week. [42] However, I am not satisfied on the evidence that a full stoppage of production would damage the Australian or NT economy, at least not to the magnitude claimed by Inpex. [43] Section 424(1)(d) is not directed to threats of economic damage to bargaining parties. In my view damage to an employer can also be damage to the economy or part of the economy, but care must be taken to only identify and assess the threatened damage to the economy. [44] There is no direct evidence that the lost production caused by a full shutdown is, for Inpex or for the economy, lost output that can never be recovered. [45] Mr Nicolaou said in his report: “In each production outage scenario, the time lost to the outage and associated ramp down and restart time reflects a loss to the production value of the Ichthys Project which cannot be recovered until the end of the life of the project. On current publicly available estimates, this would occur in the year 2058.” [46] Mr Nicolaou does not disclose the basis upon which this opinion is formed. None of Inpex’s evidence supports this notion. I place no weight on this opinion. [47] Mr Chandler said in his statement: “The onshore facility is expected to receive 122 LNG ships, 33 LPG ships and 22 Plant Condensate ships in 2026… Most days there is a ship on at least one of the jetties being loaded and at times a ship on both jetties. This means that the storage tanks are designed to hold the volume of product that accumulates between ship arrivals. Depending on when the last ship was loaded prior to the commencement of a ban on ship loading, the facility would have approximately two to three days of continued production at normal production rates before the storage tanks reach their maximum capacity, or tank tops.” [48] There is no evidence from Inpex’s production witnesses to suggest that any of the ships referred to by Mr Chandler will not be received and filled and sent away for export. [49] Crucially, there is no evidentiary basis upon which I could find that the production is irretrievably lost. [2026] FWC 2200 10 [50] Planned and unplanned production stoppages occur relatively frequently, and it was not said by any of Inpex’s witnesses that lost production time cannot ever be made up. [51] It may well be that production and loading of product to ships is delayed during a shutdown, which the economists would regard as a disruption to the economy, but I do not regard this to be a significant disruption. [52] At least some of the previous production will not be lost. As soon as the loading ban is lifted the 2-3 days of LNG production currently in the tanks will be loaded on to ships. [53] There is no evidence that the Australian or the Norther Territory economies will lose any export revenue because of these threatened stoppages. [54] As such I am not satisfied that the protected industrial action threatens to cause significant damage to the Australian economy or an important part of it. Bargaining [55] Finally, if I am wrong in my findings and an order must be made under s.424, I would not be inclined to make an order terminating bargaining as sought by Inpex. [56] While the parties’ lawyers have been preparing their respective cases for these proceedings, there have been extensive bargaining conferences convened by Deputy President Binet – including conference long into the night. [57] Both parties profess a commitment to resolving the outstanding bargaining matters and the evidence is that both parties have made significant advances towards resolution under the Interest Based Bargaining approach facilitated by Deputy President Binet. In these circumstances there is no proper basis to make an order terminating bargaining. [58] Inpex’s application is dismissed. DEPUTY PRESIDENT Appearances: R Dalton KC of Counsel with A Crocker of Counsel, instructed by Mallesons, for Inpex O Fagir of Counsel, for the AWU and CEPU Hearing details: 2026. Sydney (By Video) June 13. [2026] FWC 2200 11 Printed by authority of the Commonwealth Government Printer <PR810992> 1 See Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, (2000) 203 CLR 194; [2025] FWCFB 46; Application by Sydney Trains & NSW Trains [2025] FWCFB 46; CEPU v Wilmar Sugar [2024] FWCFB 319, (2024) 332 IR 327; Re Svitzer [2022] FWCFB 213, (2022) 321 IR 91; Svitzer Australia v AMOU [2022] FWC 493, (2022) 320 IR 91; Application by BP Refinery (Kwinana) Pty Ltd [2019] FWC 68: Re Sydney Trains Re Sydney Trains [2018] FWC 632, (2018) 277 IR 389: Minister for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd & Ors [2017] FWC 2533; Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65, (2012) 202 FCR 200; St John Ambulance v United Voice [2011] FWA 4782, (2011) 212 IR 258; Victorian Hospitals' Industrial Association v ANF [2011] FWAFB 8165 at [49], (2011) 214 IR 148; Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations [2011] FWAFB 7444, (2011) 214 IR 367; CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021, (2010) 198 IR 360; NTEIU v University of South Australia [2010] FWAFB 1014, (2010) 194 IR 30; Sucrogen Australia Pty Ltd v AWU and others [2010] FWA 6192, Ambulance Victoria v LHMU [2009] FWC 44; and Coal & Allied v CFMEU (1998) 80 IR 14.