On 10 May 2011, in response to increasing industry pressures, the Federal Government announced the implementation of a new alternative for migration for 'mega' resources projects, called Enterprise Migration Agreements (EMAs) under the
Migration Act 1958
(Cth). An EMA is a custom-designed, project-wide migration arrangement for large-scale 'mega' resources projects - a 'mega' project being one that has a capital expenditure of more than $2 billion and with a peak workforce of more than 1,500 workers. An EMA is negotiated by the project owner (or the lead project contractor, usually an Engineering, Procurement and Construction Manager (EPCM)), the Federal Government and a relevant union(s). It is essentially an umbrella migration arrangement for the entire project for the supply of skilled and semi-skilled labour fast-tracking workers via the Temporary Business (Long Stay) subclass 457 visa (457 Visa) system.
Amongst other things, the EMA allows for a streamlined access to migration including pre-qualification for employers (including sub-contractors) and for 'skilled' workers (engineers, managers, welders (first class), geologists, etc), which reduces the 457 Visa turnaround in engagement of employees on the project. Further, it also allows for the project to otherwise engage 'semi-skilled workers' (those outside of the 457 Visa occupation classification list), such as crane operators, riggers, scaffolders, etc.
A key advantage of an EMA is that sub-contractors engaged on the project (with the endorsement of the EMA holder) can sign a template labour arrangement that sits under the EMA and have access to skilled and semi-skilled workers. Importantly, the sponsored 457 Visa employee does remain the direct responsibility of the sub-contractor employer. Essentially, an EMA goes a long way to reducing the labour availability risk on a project, ensuring project certainty. The EMA operates for a period of five years.
However, some of the challenges in obtaining an EMA include satisfying the Minister for Immigration and Citizenship that the project has undertaken sufficient 'stakeholder consultation' (ie compulsory negotiations with unions), has conducted a comprehensive labour market analysis evidencing a skills shortage, and has a clear plan that commits the project (long term) to invest in skilling locals in an overarching project workforce plan. The project (or EPCM) under the EMA must engage overseas workers on terms and conditions of employment that are no less favourable than what the sponsor provides, or would provide, to an Australian to perform equivalent work in the person's workplace at the same location (up to the market salary requirement of $180,000 per annum).
Due to the high threshold set to access an EMA ($2 billion capital expenditure requirement and peak workforce of more than 1,500 workers), at the time of writing only around 15 current and committed projects would definitely meet the EMA criteria.
A number of projects in WA and QLD are currently undertaking the EMA process and DLA Piper is in a position to assist.
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