s 739 - Dispute resolution

Application to deal with a dispute - jurisdictional objection - whether the dispute arises under the enterprise agreement - dispute over applicable workers' compensation scheme - not an industrial dispute for the purpose of the Agreement - application made by former employee - application dismissed.

• [1] On 8 July 2025, Mr Maung Than (the Applicant) filed an application under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with a dispute settlement procedure in the OSM Australia Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024 (the Agreement).[1]

• [2] The application identified that the dispute centred on clause 31 of the Agreement. That clause, amongst other matters, addressed insurances, in particular workers' compensation insurance. It is the issue of workers' compensation insurance that appears to be a matter of controversy between the parties - the Applicant having taken issue about the relevant workers' compensation scheme for dealing with his potential workers' compensation claim. Clause 31 relevantly sets out:

(a) Nothing in this Agreement shall be construed as limiting the rights of any Employee under the Navigation Act.

(b) The provisions of Chapter 2 of the Navigation Act, and Marine Orders apply to Employees engaged under this Agreement.

(c) The provisions of the SRC Act apply to Employees engaged under this Agreement.

(d) If for any reason the SRC Act does not apply to the Employee's employment, clause 31.1(c) above will not apply and the Employer agrees to the following in lieu:

1. State Workers' Compensation - The Employer undertakes that the State and Territory Workers Compensation will cover all Australian Employees where the Employer has operations and where Employees are required to work...

• [3] As to why the issue of workers' compensation has arisen, this can be traced back to an alleged incident on 22 May 2025. The Applicant, who had been employed as a casual Deck Officer, states that whilst on duty on the vessel Geo Coral, the Captain, purportedly of Norwegian nationality, came up to the bridge and showed the Applicant an 'AMSA Form 18'. The Applicant appeared to explain that he had sent the form to AMSA for non-compliance with Marine Orders and Defect of the Vessel.[2] It was at this time, according to the Applicant, that the Captain physically assaulted him whilst on the bridge.[3]

• [4] Warren Harrower (Harrower), Employee Relations Manager of OSM Australia Pty Ltd (the Respondent), gave evidence on the Respondent's behalf. Harrower noted that he had been employed in his role since July 2023.

• [5] Harrower stated that on 24 May 2024, he attended the Port of Darwin to provide support to the Applicant at the time of his departure from the Geo Coral.[4] Harrower explained that the Applicant had raised multiple complaints whilst onboard the vessel and there were concerns from the Respondent's management about the Applicant's welfare.[5] Harrower said the purpose of his visit was to obtain details from the Applicant about the complaints and then transport the Applicant from Darwin Port to Darwin Airport so the Applicant could catch his booked flight back to the Applicant's home port of Perth.[6]

• [6] Harrower said that on hearing the Applicant's complaint and upon the Applicant's request, he drove the Applicant to the nearest Darwin police station.[7]

• [7] The purported physical assault of the Applicant gave rise to a sequence of events that the Applicant detailed in a document attached to his application titled 'Attn: To Mr Justice Adam Hatcher (Chairman/President) ... 3 July 2025' and which is referred to in these reasons as the Commission Letter.

• [8] In very summary form, the Commission Letter detailed how in August 2024, the Respondent initially sent to the Applicant a Northern Territory (NT) 'WorkCover' claim form to complete, and in early October 2024, continued to inform the Applicant that as the vessel was working in the Port of Darwin, this was the appropriate form. The Applicant disagreed with this contention noting that 'we are transit via Darwin for crew change, operation area is WA at all time, never work in NT'.[8] On 18 October 2024, the Applicant submitted a Seacare Form to the Respondent and Seacare, and in that same month, the Respondent's insurer, Allianz, requested that the Applicant complete a Western Australia (WA) Workers' Compensation claim form. The Applicant stated that the representative was pushing to complete the WA claim form, but the claim number did not claim all his medical expenses, so he did not complete it. Meanwhile the Applicant continued his enquiries with Seacare, and was, in November 2024, provided with the Respondent's Exemption Certificate for Seacare. It appears that the Applicant was unaccepting of the Respondent's Exemption Certificate, in that he repeatedly questioned its validity.

• [9] The dispute over the applicable workers' compensation scheme continued into late November 2024 and into 2025. On 25 November 2024, the Respondent's insurer sent to the Applicant a WA WorkCover claim form, and the Applicant was also sent a second Seacare Exemption Certificate. On 5 December 2024, the Applicant enquired with Jeff Summers (Summers), General Manager - OSM, for one last time as to which claim form to complete the NT or WA form and was informed to complete the NT form. In addition, and as noted, the Applicant challenged the validity of the Seacare Exemption Certificate. On 6 March 2025, the Applicant was informed in writing that the Applicant's employment was not connected to WA and therefore the worker's compensation claim in the WA jurisdiction did not proceed. In April and May 2025, the Applicant involved the WA police in the matter, the WA police essentially communicated to the Applicant that the matter was not within their jurisdiction, and on 20 June 2025, 'Sam G', Technical Manager - Allianz Insurance, replied that the Applicant's employment was connected to the NT and that there was evidence that the NT was where the Applicant 'usually worked' prior to the accident. At the time the application was made to the Commission, it was evident that the workers' compensation issue remained unresolved and by this stage the Applicant manifested frustration and discontent in his correspondence to Chambers.

• [10] The Respondent contends that the Commission is absent jurisdiction to deal with the dispute because:

a) there was no dispute raised with the Respondent under the dispute resolution procedure of the Agreement until still such time as the Commission convened a conference (a conference in which the Respondent reserved its rights to further pursue its jurisdictional objection); and

b) the Applicant had left the employment of the Respondent well before raising the application with the Commission, and therefore reliance on the dispute resolution procedure was not available to the Applicant.

• [11] The Respondent pressed that the Applicant's employment terminated on 21 June 2024, on the exhaustion of his 'leave' and he had not raised a dispute under the Agreement prior to that date. However, evidence adduced later in the proceedings demonstrated that the employment relationship between the parties, did in fact, conclude on 4 August 2024.

• [12] In respect of the exhaustion of the Applicant's 'leave', the Respondent relied on clause 14.6 of the Agreement, which notes that a casual employee accrues leave as per clause 26 of the Agreement. Clause 26.4(b) of the Agreement sets out that where the two-crew duty system does not operate, or where a crew member has no relief, the swing-off day will be treated as a 'Duty Day' and will accrue a day's pay and a day's 'leave'. It is the Respondent's position that the Applicant's casual employment assignment ended following the exhaustion of the Applicants 'leave' under the Agreement. Clause 14.6 relevantly provides:

(a) A Casual Employee will be paid on a fortnightly basis.

(b) A Casual Employee will accrue leave as per Clause 26 - Two Crew Duty System.

(c) Where a Casual Employee is not rostered on or engaged to perform work on board a Vessel, the following applies:

1. The Employer will continue to pay the Employee on a fortnightly basis; and
2. The quantum equivalent to the Employee's fortnightly pay; and
3. This payment will be deducted from the Employee's accrued leave until the accrued leave is exhausted.

(d) For the avoidance of doubt, the period referred to in subclause (c) above is counted towards the Employees length of service i.e., the last day of employment is the last day of accrued leave.

(e) For the avoidance of doubt, a Casual Employee remains an Employee of the Employer during the period referred to in subclause (c).

(f) Where a Casual Employee elects to be paid out, subclause (d) and (e) will not apply.

• [13] Confounding matters further, the Respondent had, in addition, applied to have the Applicant's application dismissed on the grounds that he did not comply with the directions dated 1 August 2025, which required the Applicant to file written submissions, witness statements, a document list and any material he wished to rely upon in response to the jurisdictional objection by no later than 1 September 2025. The Respondent observes that instead of receiving the materials from the Applicant, as directed, the Applicant filed emails that were irrelevant and did not address the jurisdictional objection.

• [14] The matter was listed for hearing on 15 September 2025. An interpreter was engaged to assist the Applicant. The Applicant did not present for hearing and appeared to have confirmed on email, just prior to the hearing, his preference to have the matter determined on the papers. The Respondent was content for that approach to be adopted; however, it drew attention to the Applicant's failure to attend for hearing in the context of its application under s 587 of the Act. The Respondent was informed that its jurisdictional objection and application under s 587 to dismiss the Applicant's application for non-compliance with the directions and non-attendance at the hearing would, in addition, be considered.

• [15] As may be evident at this point, the matter has a somewhat protracted history arguably emanating, in part, from the Applicant experiencing a purported traumatic event. Before making the application to the Commission, the Applicant appears to have been aggrieved by the conduct of the Respondent and perhaps the Respondent's insurers, in respect of his potential workers' compensation claim (and a claim that was declined). That the Applicant is aggrieved has, as noted, manifested itself in what was initially a voluminous amount of correspondence being filed with Chambers. This necessitated a direction to the Applicant to file his material on a particular day(s), which was not necessarily complied with. However, when arriving at a decision, I have considered all materials filed by both parties notwithstanding the Applicant's approach of filing materials prior to the date required for filing.

• [16] Briefly stated, I have concluded that the Commission does not have jurisdiction to determine the application under the dispute resolution procedure in the Agreement. First, because the dispute between the parties was not an 'industrial dispute' as contemplated by the Agreement and second, because the employment relationship between the Applicant and the Respondent had concluded prior to the Applicant raising an industrial dispute under the Agreement.

• [17] It follows that the application is dismissed and an Order[9] issues concurrently with this decision.

• [18] Before summarising the relevant provisions of the Agreement and the Employment Agreement between the Applicant and Respondent dated 15 April 2024 (the date from which it applied from) (Employment Agreement), which are the key reference points for the jurisdictional objections, the background to the matter warrants further attention.

• [19] Attached to the Applicant's application were multiple documents, one of which provided further context to the current application and has been referred to in this decision as the Commission Letter.

• [20] I have noted that the Applicant asserts that he was physically assaulted by the Captain of the Geo Coral. The purported physical assault of the Applicant gave rise to a sequence of events that the Applicant details in the Commission Letter. Set out below is a summarised version of those events:

(a) On 2 August 2024, Ilana Jewson (Jewson), Operations Manager - OSM, sent to the Applicant a NT 'WorkCover' claim form to complete;

• (b) On 1 October 2024, the Respondent 'kept pushing' the Applicant to complete the NT WorkCover claim form;[10]
• (c) On 2 October 2024, the Applicant asked the Respondent why he had to complete the NT WorkCover claim form;[11]
• (d) On 3 October 2024, Summers, GM - OSM, informed the Applicant that the vessel was working in the Port of Darwin. The Applicant disagrees with this noting that 'we are transit via Darwin for crew change, operation area is WA at all time, never work in NT';[12]

(e) On 2 August 2024, Jewson sent a WorkCover claim form to the Applicant on the basis that the vessel had been working from the Port of Darwin;

(f) On 18 October 2024, the Applicant submitted a Seacare Form to the Respondent and Seacare via email;

(g) On 23 October 2024, a representative of the Respondent's insurer, Allianz Personal Injury, Sean O'Reilly (O'Reilly), was provided claim number 993560300176 and the WA Workers' Compensation claim form. The Applicant stated that the representative was 'pushing' him to complete the WA claim form and that the claim number did not claim all his medical expenses. Due to this, he did not complete the WA claim form - the Applicant was enquiring with Seacare for the Seacare claim;

(h) On 6 November 2024, the Applicant requested 'Arron' from Seacare provide evidence of the Respondent being exempted;

(i) On 7 November 2024, Arron replied without official certificate (presumedly the Exemption Certificate);

(j) On 11 November 2024, Summers provided the Applicant with a Seacare Exemption Certificate with no signature, exempted date was 14 June 2024 to 30 April 2025;

(k) The Applicant states he replied to Summers that the incident occurred on 22 May 2024, therefore before the exemption;

(l) On 25 November 2024, the Respondent's insurer sent to the Applicant a WA WorkCover claim form, and Summer sent to the Applicant a second Seacare Exemption certificate with no signature. The exempted date was 1 May 2025 to 30 April 2025;

(m) On 25 November 2024, O'Reilly provided the Applicant with a WA Workers' Compensation claim form. The Applicant stated that the representative was pushing to complete the WA form;

(n) On 5 December 2024, the Applicant enquired with Summers for one last time which claim form to complete - the NT or WA form;

(o) On 5 December 2024, Summers replied to the Applicant to fill in the NT form;

(p) On 6 March 2025, O'Reilly informed the Applicant in writing that the Applicant's employment was not connected with WA;

(q) On 24 March 2025, Seacare replied about the two exemptions (due to crew change);

(r) On 11 April 2025, the Applicant reported the matter to the WA police to investigate, who informed the Applicant it was under Seacare's compensation claim;

(s) On 20 May 2025, the police investigated the issue and the Applicant sent the Seacare claim form to Allianz; and

(t) On 20 June 2025, 'Sam G', Technical Manager - Allianz Insurance, replied that the Applicant's employment was connected to the NT and that there was evidence that the NT was where the Applicant 'usually worked' prior to the incident.

• [21] According to Harrower, the Applicant had been employed by the Respondent as a Deck Officer on a casual basis pursuant to the Agreement.[13]

• [22] Harrower gave evidence that on 24 May 2024, he attended the Port of Darwin to provide support to the Applicant at the time of his departure from the vessel Geo Coral.[14] Harrower explained that the Applicant had raised multiple complaints from onboard the vessel and there were concerns from the Respondent's management team about the Applicant's welfare.[15] Harrower said the purpose of his visit was to seek details from the Applicant about the complaints and then transport the Applicant from Darwin Port to Darwin Airport so the Applicant could catch the Applicant's booked flight back to the Applicant's homeport of Perth.[16]

• [23] Harrower stated that he was 'aware that the Applicants [sic] employment with the Respondent ended on around 21 June 2024'.[17]

• [24] On 23 July 2025, Harrower became aware of a dispute application lodged with the Commission by the Applicant. Whilst the Respondent had been informed about the application on 17 July 2025, Harrower had been on a period of leave.

• [25] Harrower stated that it was not until the conference before the Commission on 1 August 2025, that the Applicant first informed the Respondent that the Applicant was now attempting to refer the Applicant's allegations under the dispute resolution procedure of the Agreement.[18] Harrower said that prior to 1 August 2025, he was not aware that the Applicant was seeking to raise a dispute under the dispute resolution procedure of the Agreement.[19]

3 Is there a dispute for the purpose of the Agreement

• [26] The application has been brought under Part 6-2 of the Act. Under that Part, s 738 prescribes the circumstances in which Div 2 of Part 6-2 applies. Broadly speaking, those circumstances relate to the existence of a dispute resolution procedure in four listed types of employment instruments, namely modern awards, enterprise agreements, contracts of employment/employment agreements and determinations made under the Public Service Act 1999 (Cth).

• [27] Section 738(b) of the Act refers to a dispute resolution procedure in an enterprise agreement which includes a term that provides for dealing with disputes, including a term in accordance with s 186(6) of the Act.

• [28] Section 739 of the Act then sets out the Commission's parameters for dealing with a dispute in circumstances where a term in s 738 requires or allows the Commission to deal with a dispute.[20] Relevant to the case in hand are those subsections at s 739(3)-(6):

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

• [29] It is apparent from s 595(2)-(3) that the concept of 'dealing' with a dispute encompasses any dispute measures which the Commission considers appropriate to resolve a dispute, and non-exhaustively includes mediation, conciliation, making a recommendation, expressing an opinion, or arbitration:

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

• [30] To discern whether there was a dispute as contemplated by the Agreement, it is necessary to summarise the key terms of the Agreement.

• [31] Starting with the coverage clause of the Agreement, clause 4 relevantly provides:

(a) The Employer;

(b) The AMOU; and

(c) The Employees employed by the Employer to work in any of the classifications contained in this Agreement whether or not they are at a particular point in time performing duties on rostered work time on a Vessel.

4.2 This Agreement also applies to Vessels from mobilisation until demobilisation which includes but is not limited to Vessels performing run jobs, international voyages, Vessel delivery, Vessel redelivery, Vessels that are off hire or not on contract, Vessels which are laid-up or on a cyclone mooring, Vessels that are warm stacked or cold stacked, Vessels that are Laid Up, or where a Vessel is used in an emergency situation.

• [32] Clause 4.3 of the Agreement lists various exclusions to the coverage clause which are not relevant for current purposes.

• [33] The terms and 'Employee' and 'Employees" are defined within clause 3.1 of the Agreement to mean a person or persons employed by the Employer in the Maritime Offshore Oile and Gas Industry in any of the classifications contained in the Schedules of this Agreement other than Cadets. It is uncontroversial that at all material times the Applicant was not a Cadet.

• [34] Clause 3.1 of the Agreement defines the term 'Casual Employee' as an 'Employee' who is appointed as such under clause 14 - Types of Employment under the Agreement.

• [35] Clause 14 of the Agreement states as follows:

(a) As a Full Time Employee;

(b) As a Part-Time Employee; or

(c) As a Casual Employee.

The hours and pattern of part-time employment shall be agreed in writing by the Employee and the Employer.

(a) A Casual Employee engaged as such will be paid a casual loading of 25% over the life of the agreement in accordance with 14.3(b)(b), in lieu of:

1. Annual leave and personal/carer's leave;
2. Private health insurance;
3. Short-term loading.

(b) Casual Loading will be 21.5% upon approval of the Agreement and shall increase as follows:

1. 1st March 2024 casual loading increases to 23%;
2. 1st March 2025 casual loading increases to 24%;
3. 1st March 2026 casual loading increases to 25%.

(a) A Casual Employee who has worked regularly for the Employer for three (3) consecutive swing cycles in the previous twelve (2) month period may apply for permanent employment with the Employer. Subject to clause 14.4(b), an Employee will be granted permanency and will commence as a permanent as a permanent in the next pay cycle.

(b) If a Casual Employee makes a request for permanency under clause 14.4(a), the Employer will grant the Casual Employee permanent employment unless converting the Casual Employee to permanent employment would result in redundancies occurring within the proceeding twelve (12) months.

(c) Nothing in this clause requires a Casual Employee to convert to permanent employment.

(d) This clause overrides any requirement by the Employer to write to Casual Employees regarding the offering of permanency as outlined under existing industrial relations legal frameworks.

(a) The Employer is committed to offering permanent employment where possible. When a Permanent Employee vacates their permanent position for any reason other an redundancy, the Employer will call for an expression of interest with offers to fill the vacated permanent position within 28 days, by a Casual Employee.

(b) The position will be filled within 7 days, where the applicant returns confirmation of permanent employment.

(c) Nothing in this clause requires a Casual Employee to convert to permanent employment.

(d) Where the number of Employees expressing an interest in a permanent position exceeds the number of positions available, preference will be given to those with the longest service subject to operational requirements.

(g) A Casual Employee will be paid on a fortnightly basis.

(h) A Casual Employee will accrue leave as per Clause 26 - Two Crew Duty System.

(i) Where a Casual Employee is not rostered on or engaged to perform work on board a Vessel, the following applies:

1. The Employer will continue to pay the Employee on a fortnightly basis; and
2. The quantum equivalent to the Employee's fortnightly pay; and
3. This payment will be deducted from the Employee's accrued leave until the accrued leave is exhausted.

(j) For the avoidance of doubt, the period referred to in subclause (c) above is counted towards the Employees length of service i.e., the last day of employment is the last day of accrued leave.

(k) For the avoidance of doubt, a Casual Employee remains an Employee of the Employer during the period referred to in subclause (c).

(l) Where a Casual Employee elects to be paid out, subclause (d) and (e) will not apply.

(a) Permanent Employees may initially be engaged for a probationary period of employment up to the first three completed swing cycles.

(b) A Permanent Employee who has previously completed three consecutive swing cycles as a Casual Employee for the Employer shall not serve a probationary period.

(c) The Employer may, subject to reasonable notice, transfer an Employee within its fleet as required.

• [36] Clause 15 of the Agreement sets out the termination of employment provisions in the following terms:

Termination of employment by either the Employer or the Employee, for reasons other than serious misconduct requires the following notice periods or payment in lieu of notice:

(b) Casual Employees

1. Minimum seven days' notice when onshore and rostered to return to work; and
2. Minimum of seven days' notice when offshore and notice is given by the Employer for the purpose of facilitating the deployment of Full Time Employees, provided that when a Casual Employee is informed in writing of the length of a casual engagement prior to agreeing to undertake it, or the project ceases ahead of the expected completion date and the notice period cannot reasonably be given then the notice period will not apply....

• [37] The dispute resolution procedure is provided at clause 12 in the following terms:

12.1 When any industrial dispute arises, including about a matter arising under this Agreement, the NES or any other matter pertaining to the employment relationship, this clause sets out the procedure to resolve the dispute.

Where a matter arises when the Employee(s) are on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Master.

Where the matter arises when the Employee(s) are not on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Employer's nominated representative.

The matter will be referred for discussion between the Employee, the appropriate Senior AMOU Official or other nominated representative and the Employer's Human Resources of Industrial Relations Manager.

If the matter remains unresolved or if Steps 1-3 are not resolved within 7 days of the initiation of Step 1:

In the evident that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.

12.2 Where the matter remains unresolved, the FWC may deal with the dispute in two stages:

(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:

1. Arbitrate the dispute; and
2. Make a determination that is binding on both of the parties.

12.3 While the parties to the dispute are trying to resolve the dispute using the procedures in this clause:

(a) An Employee must continue to perform his or her work as he or she would normally;

(b) Unless he or she has a reasonable concern about imminent risk to his or her health or safety; and

(c) An Employee must comply with a direction given by the Employer to perform other available wok at the same workplace, or at another workplace, unless:

1. The work is not safe; or
2. Applicable occupational health and safety legislation would not permit the work performed.

12.4 The parties to the dispute agreed to be bound by a decision made by the FWC in accordance with this clause but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC.

12.5 An Employee who is party to the dispute or the Employer may appoint another person, organisation or association to accompany and/or represent them for the purposes of the procedures in this clause.

12.6 Employees who are involved in the dispute during their off swing or off duty time are not entitled to any additional payments. Employees who are inovled in the dispute whilst on duty, can only take time off with pay with the approval of the Master and for up to two hours per shift. Employees who are required as a witness in an arbitration will have access to on board teleconferencing facilities where such facilities are available and working. Employees will not be transported from the vessel to any meetings to participate, unless directed by the FWC.

• [38] Clause 31 of the Agreement provides the following in respect of 'Insurances':

(e) Nothing in this Agreement shall be construed as limiting the rights of any Employee under the Navigation Act.

(f) The provisions of Chapter 2 of the Navigation Act, and Marine Orders apply to Employees engaged under this Agreement.

(g) The provisions of the SRC Act apply to Employees engaged under this Agreement.

(h) If for any reason the SRC Act does not apply to the Employee's employment, clause 31.1(c) above will not apply and the Employer agrees to the following in lieu:

1. State Workers' Compensation - The Employer undertakes that the State and Territory Workers Compensation will cover all Australian Employees where the Employer has operations and where Employees are required to work...

• [39] One of the issues in this case is whether the Commission has the jurisdiction to deal with the Applicant's 'dispute' under s 739 of the Act and the dispute resolution procedure of the Agreement.

• [40] In respect to jurisdiction generally, it is uncontroversial that the Commission has an obligation, in all matters, to satisfy itself that is has the requisite jurisdiction to perform a particular function or exercise a particular power.[21]

• [41] Regarding the interpretation of an enterprise agreement, this involves the task of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted.[22]

• [42] In WorkPac Pty Ltd v Skene, the Full Federal Court elucidated the following regarding the interpretation of an enterprise agreement:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[23]

• [43] The Full Federal Court further clarified that where a term is undefined it ought to be presumed that the draftsperson intended that the term have its ordinary meaning unless there is a contrary indication.[24] And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that canon of construction regarding the 'ordinary meaning' remains applicable as a starting point.[25]

• [44] This starting point for interpretation was reiterated by the Full Court of the Federal Court in James Cook University v Ridd[26] which set down that relevant principle in addition to several others:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to "... the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..." (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

• [45] Prior to engaging with the question of when the 'dispute' was raised by the Applicant and the implications of that timing, it is first necessary to consider the characterisation of the 'dispute' and whether it falls within the dispute resolution procedure as provided in clause 12 of the Agreement.

• [46] The Agreement does not define the word 'dispute'. It can therefore be safely assumed that the meaning to attribute to the word is its ordinary meaning. As was stated in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2), the word 'dispute' is a common word of everyday usage, and the essence of its meaning is that there is an occasion during which there is an exchange of 'opposing views' or 'positions' - with the necessity for there to be an exchange of positions 'for and against' a particular result. [27]

• [47] Whilst it is to be appreciated that the content of the Applicant's materials projected, in places, heightened rhetoric and unhelpful assertion, it was not challenging to decipher the nature of the dispute. The dispute can be characterised as one of apparent confusion and different views as between the Applicant and the Respondent with respect to the applicable workers' compensation scheme relevant to the incident on 22 May 2024 and any injury or illness that followed. The Respondent, or its insurer, appeared to consider that the relevant workers' compensation scheme sat in the NT, and at a later stage WA. The Applicant appears to have favoured Seacare. It is noted that the Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority) is said to oversee a national scheme of occupational health and safety and workers' compensation arrangements for defined seafarers.

• [48] Having characterised the dispute, the next step is to decide whether the dispute, thus characterised, has nexus or sufficient nexus to the provisions of the Agreement itself.[28]

• [49] Clause 12.1 of the of the Agreement is cast in broad terms, allowing an industrial dispute about a matter arising under the Agreement, the NES or any other matter pertaining to the employment relationship to be raised under the term.

• [50] The term 'industrial dispute' has been judicially considered in certain contexts.[29] However, I consider it unnecessary to explore the term at length, noting only that the meaning of the term is to be derived from its ordinary meaning and construed within the context of clause 12.1 of the Agreement and the Agreement more broadly. Relevantly, it therefore includes a dispute over the terms of the Agreement or to any other matter pertaining to the employment relationship.

• [51] Clause 31.1(c) of the Agreement sets out that the provisions of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (SRC Act) apply to employees engaged under the Agreement. However, clause 31.1(d) makes provision for where the SRC Act does not apply, providing that the Employer agrees that in respect of 'State Workers' Compensation' - that '[T]he Employer undertakes that the State and Territory Workers Compensation will cover all Australian Employees where the Employer has operations and where Employees are required to work...'.

• [52] To this extent, it is not the case that the Respondent is proposing that no workers' compensation scheme applies in the circumstances. It has, itself, or through its insurer, steered the Applicant to make applications under workers' compensation schemes in the NT and WA, and has provided Exemption Certificates in respect of Seacare. As noted, the dispute is over which is the applicable scheme.

• [53] The determination of the applicable workers' compensation scheme would, in my view, require, initially, a workers' compensation claim to be submitted and a determination of liability by the regulatory authority responsible for administering the scheme in the relevant jurisdiction. Legislation, whether it is, for example, the Workers' Compensation and Injury Management Act 2023 (WA) or the Return to Work Act 1986 (NT) sets out when liability for compensation arises under the applicable legislation. In circumstances where there is dispute over the rejection of a workers' compensation claim on the basis that it is not connected with the State or Territory, that is a matter that sits within the remit of arbitral services provided for within the scheme and thereafter the relevant court of competent jurisdiction.

• [54] Similarly, the same can be said in respect of the SRC Act. The Employment Agreement addresses that the vessel upon which the Applicant was working was subject to the SRC Act, and the Agreement specified that the the SRC Act applies subject to an understanding that it may not. Whilst the Applicant appears to have challenged the validity of the Exemption Certificates provided by the Respondent under the SRC Act, this is a matter that sits with the Seacare Authority - not this Commission.

• [55] Whilst clause 12.1 of the Agreement is cast in broad terms and clause 31.1 sets out that the SRC Act applies to employees engaged under the Agreement and recognises the Respondent's undertaking that the workers' compensation scheme of the State or Territory will cover all of its Australian employees should the SRC Act not apply, it is not the case that the dispute raised by the Applicant has nexus or sufficient nexus to the provisions of the Agreement itself.[30] It therefore follows that the dispute between the Applicant and Respondent is not an 'industrial dispute' for the purpose of clause 12.1 of the Agreement.

• [56] Whilst is it open to dismiss the Applicant's application on this basis, for the sake of fulsomeness, I have considered the Respondent's argument in respect of the dispute having been initiated under the dispute resolution procedure at a time when the Applicant was said, in fact, to be no longer employed.

• [57] It is clear from ING Administration Pty Ltd v Jajoo ('Jajoo')[31] and the decisions that follow it both under the Workplace Relations Act 1996 (Cth),[32] and under the Act,[33] that there is capacity for the Commission's jurisdiction to be enlivened in a dispute involving a former employee if there is compliance with an applicable dispute settlement procedure during the employment.

• [58] In Jajoo, the Full Bench considered this issue in respect of a dispute resolution procedure in a certified agreement and the preceding authorities, and stated that:

[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.

[39] The ING interpretation involves construing the provision as disqualifying employees from any process the parties may agree to confer on the Commission once they cease to be employed by their employer. Further, it requires s 170LW to be construed as depriving the parties to agreements of the ability to have a dispute continue to be resolved under an agreed procedure after termination of employment. Such a consequence would arise with respect to any dispute over any aspect of the agreement, even claims such as the non-payment of a meal allowance. It would also operate to deprive the Commission of jurisdiction at any time during the process. If termination arises after a decision is reserved, the jurisdiction to hand down the decision would not exist. As a matter of interpretation, a court or tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning. Further, we do not believe that concepts of legal and industrial disputes provide any assistance in resolving the matter. Nor do we believe that it matters how the termination of employment occurred. We do not believe that s 170LW should be interpreted as including a limitation on the rights of parties to agreements in this way. If a dispute arises when the employment relationship exists, we are of the view that it is a dispute between the employer and an employee. We believe that a limitation of the nature contended for by ING should not be inferred from the words of s 170LW. In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.

• [59] In Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd, the Full Bench expressed that Jajoo is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee's relationship with the employer is terminated.[34]

• [60] Similarly, in Mitchell v University of Tasmania, the Full Bench expressed:

We now turn to grounds 1 and 2 of the appeal. As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz, Broadspectrum and Goonyella on the basis that, where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end.[35]

• [61] Turning to the employment relationship between the Applicant and the Respondent, by letter of 3 October 2023, the Applicant was offered casual employment with the Respondent in the position of Second Officer reporting to the Chief Officer on the vessel Geo Coral.[36] The 'Terms of Employment' in the opening paragraphs of the letter of offer, were stated as 'Casual'.[37] The 'Terms of Employment' were expanded upon in the second page of the letter of offer in the following terms:

Your obligations will be those of a casual employee. OSM is under no obligation to offer employment to you at any time and likewise you may decline any offer of employment that are made. Consequently, you should have no expectation of ongoing employment with OSM.

• [62] The letter of offer set out that the Applicant's 'Hours of Work' would be in accordance with the terms and conditions of his relevant 'EBA'.

• [63] Under the heading of 'Remuneration' the following was provided:

You will be paid fortnightly, in the bank account designated by you. Your position attracts a day rate of $448.1030 AUD covers payments for the performance of all duties required. As per the Enterprise Agreement you will also receive leave on a 1:1 basis (i.e. one duty day will accrue one leave day).

You will also be paid a casual loading of 20%, that compensates you for the casual nature of your employment including not being entitled to any form of the below (as per the Enterprise Agreement):

• Annual Leave:
• Personal/Carer's Leave;
• Long Service Leave;
• Private Health Insurance;
• Short-term loading; and
• Contingencies and training days.

• [64] In respect of annual leave, the letter of offer set out that as a casual employee the Applicant was not entitled to paid annual leave and that his hourly rate included compensation for the lack of any form of paid leave. Similarly, the letter of offer provided that the Applicant was not entitled to paid personal/carer's leave as a casual employee and that his hourly rate of pay included compensation for the lack of any form of paid leave.

• [65] In respect of the termination of employment, the letter of offer set out the following under the hearing of 'Termination of Employment':

In order to terminate employment either party will give the other part one (1) days notice in writing. The periods of notice referred to will not apply in the case of conduct that justifies summary dismissal, including (but not limited to) serious misconduct, malingering, inefficiency or neglect of duty including (but not limited to):

• Theft;
• Fraud;
• Assault;
• being intoxicated at work; or
• conduct that causes serious risk to the health and safety of a person; or
• being convicted of any criminal offence which prevents you from holding a MSIC card; or
• conduct which in the reasonable opinion of OSM bring or may bring it into disrepute; or
• refusing to carry out a lawful and reasonable instruction that is consistent with the contract of employment.

In the event of summary dismissal, wages will be paid up to the time of dismissal only.

• [66] The letter of offer set out that it contained the entire understanding between the parties concerning the Applicant's employment and superseded any prior agreements or communications between the parties.

• [67] The letter of offer was signed by the Applicant on 3 October 2023.

• [68] Also included in the Applicant's documents was an Employment Agreement**.** This Employment Agreement, which I find supersedes the aforementioned letter of offer, sets out that wages, overtime pay, and other conditions were according to the collective agreement between:

OSM Australia Pty. Ltd. Maritime Offshore Oil and Gast Industry Deck Officers Enterprise Agreement 2024 and OSM Australia Pty Ltd; The Australian Maritime Officers' Union (AMOU).[38]

• [69] The Employment Agreement provided that for casual officers, one day onboard accrued one day of leave, health and social security protection benefits were as 'per EBA' and 'Seafarers are entitled for repatriation in accordance with Standard A2.5 (MLC 2006) with return to point of hiring.[39]

• [70] In respect to special conditions and other information, the Employment Agreement set out as follows:

The seafarer is entitled to repatriation, at the expense of the owner, in any of the following circumstances:* The seafarer has worked continuously on the vessel for at least 11 months.* This work agreement expires at the end of the notice period in this work agreement;* This work agreement is terminated (see above);* The owner of the vessel is unable to fulfil his or her legal or contractual obligations to the seafarer as an employer because of: - insolvency; or - sale of the vessel; or - change of the vessel's registration; or - unforeseen circumstances beyond the owner's control* The vessel is on its way to a war zone to which the seafarer does not consent to go* In the event of termination or interruption of employment; - in accordance with an industrial award; or - in accordance with a collective agreement. The above-named vessel is subject to the Seafarers Rehabilitation and Compensation Act 1992 Should a situation arise where the seafarer wishes to make a complaint regarding any matter arising as a result of this agreement, the seafarer may raise this matter with their supervisor or the Master of the vessel. The seafarer cannot have adverse action taken against them as a result of making a complaint and has the right to be accompanied by an independent person at all times. The seafarer is advised that they have the right to seek advice before signing this agreement and no adverse action can be taken against the seafarer as a result of seeking that advice. Special conditions to this assignment: Australian terms and conditions apply whilst vessel is operating within Australian Waters, due to cabotage regulations. Wages: Your wage will be $666.8901 per day (including Casual Loading) You will also receive allowances in accordance with your Enterprise Agreement. Your wages are subject to local taxation and superannuation/pension requirements Health and Social Security Entitlements The above-named vessel is subject to the Seafarers Rehabilitation and Compensation Act 1992 Special Conditions for this Assignment: Australian terms and conditions apply whilst vessel is operating within Australian Waters, due to cabotage regulations. ln case a seafarer may become captive or otherwise prevented from sailing as a result of an act of piracy or hijacking, irrespective whether such act takes place within or outside designated areas, the seafarer's employment status and entitlements under this Agreement shall continue until the seafarer's release and thereafter until the seafarer is safely repatriated to his/her home or place of engagement or until all Company's contractual liabilities end. These continued entitlements shall, in particular, include the payment of full wages and other contractual benefits. The Company shall also make every effort to provide captured seafarers, with extra protection, food, welfare, medical and other assistance as necessary.

• [71] According to the Respondent, the Applicant's employment ended on the exhaustion of his 'leave'. Whilst the Respondent initially pressed that the employment relationship concluded on 21 June 2024, the Respondent was directed to provide evidence in support of its contention. That evidence was provided on 15 September 2025 and demonstrated that the Applicant's payroll profile was terminated on 31 August 2024 and that he had exhausted his 'leave' as that term is understood by reference to clause 14.6(d) of the Agreement and by the terms of the Employment Agreement, by 4 August 2024. I find that as of 4 August 2024, the employment relationship between the Applicant and the Respondent was terminated.

• [72] The Commission Letter sets out that on 2 August 2024, Jewson sent to the Applicant a NT 'WorkCover' claim form to complete. However, it was not until October 2024 that issues started to percolate between the parties regarding the workers' compensation form, and it is not until 15 November 2024, that the Applicant sent an email to Harrower stating that 'remind you that you have signed the Undertaking section 190. You need to follow as per agreement 16 Feb 2024. On top of that, I want you to follow the ILO and Marine Order 11'.[40] The reference to the 'Undertaking section 190' is evidently a reference to Harrower signing the undertaking affixed to the Agreement and 16 February 2024 is the date that Harrower signed that same undertaking. I am content to find that it was at this time that the Applicant referred the Respondent to the Agreement and sought compliance with its terms.

• [73] However, as of 15 November 2024 or even at the earlier time of October 2024, the Applicant was not an employee of the Respondent. I am therefore unable to find that prior to the end of the employment relationship on 4 August 2024, the Applicant had raised a 'dispute' under the Agreement with the Respondent (irrespective of whether it constituted an 'industrial dispute' for the purpose of clause 12.1 of the Agreement). It follows that the matter concerns an industrial dispute raised with the Respondent wholly after the termination of the employment relationship. Accordingly, the application raising a dispute under s 739 of the Act must be dismissed.

• [74] Having determined that the Commission is absent jurisdiction to deal with the dispute, it proves unnecessary to address the Respondent's application under s 587 of the Act. The Respondent had asserted that the application had not been made in accordance with the Act, the application had no reasonable prospects of success and that the application was frivolous and vexatious. The contentions were premised upon the Applicant's non-compliance with the directions and non-attendance at the hearing on 15 September 2025.

• [75] It is correct to say that the Applicant did not present for hearing and did not strictly comply with the directions issued to the parties. However, there were sufficient materials before the Commission to determine the Respondent's jurisdictional objection on the papers. I therefore concluded that the appropriate course was to determine the Respondent's objections having not been persuaded to exercise discretion to dismiss the application on the grounds advanced by the Respondent in this regard.

[1] [2024] FWC 944, AE523847, PR772416, 15 March 2024.

[2] Digital Hearing Book, 174 (DHB).

[4] Witness Statement of Warren Harrower dated 15 August 2025, [6] (Harrower Statement).

[9] PR792376.

[13] Harrower Statement (n 4) [4].

[20] Fair Work Act 2009 (Cth) s 739(1).

[21] Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321, [15].

[22] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) (2020) 298 IR 447, 455 [16] ('Qantas'); Kucks v CSR Ltd (1996) 66 IR 182, 184.

[23] WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536, 580 [197].

[26] James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, 580 [65].

[28] Seven Network (Operations) Ltd v Community and Public Sector Union (2003) 122 IR 98, 107 [32] ('Seven Network').

[29] General Accident Fire & Life Assurance Corporation Ltd v Australian Insurance Staffs' Federation [1923] HCA 61; (1923) 33 CLR 517 Isaacs and Rich JJ.

[30] Seven Network (n 28) 107 [32].

[31] (2006) 158 IR 239.

[32] See, eg, Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2007) 163 IR 134; Deakin University v Rametta [2010] FWAFB 4387.

[33] See, eg, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019; Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269 ('Broadspectrum'); Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619.

[34] Broadspectrum (n 33) 133 [42].

[35] [2022] FWCFB 165 [29].

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