Maung Than v OSM Australia Pty Ltd - [2025] FWC 2967

[2025] FWC 2967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 739—Dispute resolution

Maung Than
v

OSM Australia Pty Ltd

(C2025/6419)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 OCTOBER 2025

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.

Issue and outcome

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]

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:

31.1 Navigation Act and SRC Act
(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:
i.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…

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]

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2967
Decision Date: 6 OCTOBER 2025

CaseChat Overview and Summary

In the Fair Work Commission, Maung Than (the Applicant) applied for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the OSM Australia Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024 (the Agreement). The dispute was about which workers’ compensation scheme was applicable to the Applicant’s potential workers’ compensation claim. The Applicant was a former employee of the Respondent, OSM Australia Pty Ltd, and the Applicant’s employment relationship with the Respondent concluded on 4 August 2024. The Respondent objected to the Commission’s jurisdiction to hear the dispute. The Deputy President found that the dispute was not an ‘industrial dispute’ for the purpose of clause 12.1 of the Agreement, and that the Applicant’s employment relationship with the Respondent had concluded prior to the Applicant raising a dispute under the Agreement. It followed that the application was dismissed.

Orders