Australia: Troubled waters: Uncertainty still surrounds foreign workers involved in offshore resources activities

The legal rollercoaster involving the status of foreign workers employed in the Australian offshore resources support sector continues.

The recent decision of the Full Court of the Federal Court of Australia in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection has not brought an end to the debate over whether non-citizens working to support offshore projects are exempt from holding work visas and from the application of Australian employment conditions. Instead, the Minister has put in place interim measure to bypass the effects of that decision.

The position of foreign workers employed on an offshore resources installation is settled – as they are working on an installation that is attached to Australia's sea bed, they are required to hold work visas and subject to Australian employment conditions.

The position of foreign workers employed in the offshore resources support sector (i.e. on offshore supply and support or other associated vessels) is, at least temporarily, that they are not required to hold work visas and are not subject to Australian employment conditions. However, should the interim measures put in place by the Minister be challenged, offshore support workers will have to hold Australian work visas and would be entitled to Australian employment conditions.

Background

The contorted history of the matter is:

• In 2012 in Allseas Construction S.A. v Minister for Immigration and Citizenship the Federal Court of Australia held that non-citizens working aboard pipe-laying vessels were not within Australia's 'migration zone' and therefore did not require work visas and did not have to be afforded Australian employment conditions.
• In response to the decision, in June 2013 the government at the time introduced the Migration Amendment (Offshore Resources Activity) Act 2013 ("Amendment Act"), which had the effect that foreign workers participating in an offshore resources support activity were deemed to be within the 'migration zone', required to hold work visas and entitled to Australian employment conditions.
• Shortly after there was a change in government. In March 2014 the new government attempted to repeal the Amendment Act through the Migration Amendment (Offshore resources Activity) Repeal Bill 2014. However, this attempt stalled in the Senate.
• In a further effort to overcome the Amendment Act, the new government sought to introduce regulations to work around it, being the Migration Amendment (Offshore Resources Activity) Regulation 2014. However, the regulations were disallowed by the Senate on 16 July 2014.
• The Assistant Minister for Immigration and Border Protection then attempted to overcome the disallowance of the regulations by making a determination (IMMI 14/077) under section 9A(6) of the Migration Act which effectively altered the definition of 'offshore resources activity' under the Migration Act to exempt foreign workers in the offshore support sector from the requirements to hold work visas or be afforded Australian employment conditions.
• The Maritime Union of Australia ("MUA") unsuccessfully challenged the determination before the Federal Court in Maritime Union of Australia v Assistant Minister for Immigration and Border Protection.
• The MUA then successfully appealed the decision before the Full Court of the Federal Court in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection.

Decision of the Full Court of the Federal Court of Australia

The Full Court of the Federal Court of Australia held that the Minister's determination was not authorised under the Migration Act and was invalid. The Court found that Parliament intended to confer upon the Minister a power to except or exempt particular activities or operations performed under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 or the Offshore Minerals Act 1994, not to reverse the Parliament's desire and intention to bring within the Migration Act non-citizens who are engaged in activities or operations under the Offshore Petroleum Act or the Offshore Minerals Act.

The effect of this decision meant that foreign workers in the offshore support sector would be required to hold work visas and afforded Australian employment conditions.

Subsequent developments

Immediately following the Full Court decision, the Assistant Minister for Immigration and Border Protection introduced another determination (IMMI 15/073) which revoked the earlier determination (which had been declared invalid by the Full Court in any event) and introduced a new determination that excludes foreign workers engaged in an offshore support operation or activity directly involving a resources installation from the requirement to hold a work visa.

The Assistant Minister also introduced a declaration (IMMI 15/074) to the effect that all foreign workers engaged on a vessel in an area to participate in or support an offshore resources activity (e.g. an offshore supply, support or associated vessel) are deemed to have been granted a Special Purpose Visa ("SPV"), provided that the vessel has previously been reported to the Department of Immigration and Border Protection.

Impact on employers

The combined effect of the Full Court decision and subsequent Ministerial determination and declaration is that foreign workers engaged in offshore resource support operations or activities involving a resources installation that is part of Australia are not considered to be within Australia's 'migration zone', are not required to hold a work visa and do not have to be afforded Australian employment standards.

It is unclear whether the MUA will seek to challenge the present determination and/or declaration.

Whilst the Minister's determination and declaration have, for the moment, reinstated calm over the waters of the offshore resources sector, there is still turbulence lurking below the surface.

Employers and work placement agencies in the offshore sector should review their employment arrangements to ensure that they are compliant with the present requirements and consider preparing contingency arrangements in case the Minister's determination and declaration are revoked or challenged at short notice.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.