BACKGROUND
The inconsistencies created by the Migration Act's application to the offshore resources industry has been a contentious issue for some time. Since 1982 employers have employed non-citizens, who do not hold visas, on certain vessels in Australia's exclusive economic zone (EEZ). This practice has continued unhindered because the migration zone, as defined by s 5 of the Migration Act, does not extend to vessels that are not attached to the continental shelf or a resource installation. The Federal Court's decision in Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas) highlighted this issue, with the Court finding that non-citizens employed on two offshore pipe-laying vessels were not taken to be within the migration zone and, therefore, were not required to hold visas.
The visa system is integral to maintaining Australia's national security and according to the Government also the fair work protections. The government uses the visa system to conduct security checks on all non-citizens who enter Australia. Also according to the Government security checking is particularly important in the offshore resources industry given the economically and strategically significant nature of the industry and the dangers associated with the handling of large quantities of pressurised flammable gas and oil. Further, the government considers it a priority to regulate minimum salary levels and other work conditions by imposing conditions on visas and companies who sponsor non-citizens to work in Australia. Therefore, without visa requirements the Government considers that it has no way of ensuring that workers are not being exploited.
We are not aware of evidence that there has been a pattern of exploitation of workers in these circumstances. We note that it is oil and gas industry practice globally to engage a core workforce on international contracts on the basis that they have the skills and competence to operate specialist vessels wherever they are deployed in the world.. The Government response to Allseas was the creation of the Migration Marine Taskforce to investigate and make recommendations to solve this perceived problem. The Taskforce recommended amendments to the Migration Act to link the Act's coverage of the offshore resources industry to existing regulatory schemes. The Amending Act is the mechanism by which the Taskforces recommendations will be implemented.
AMENDMENTS
The Migration Amendment (Offshore Resources Activity) Act 2013 (Amending Act) amended the Migration Act by providing that persons, in a particular area, who participate in, or support, an offshore resources activity are deemed to be within the migration zone. To clarify this deeming provision the Amending Act also provides that a person is within the migration zone whether or not their participation or support of the offshore resources activity, or the offshore resources activity itself, has started, is continuing or has concluded.
The Amending Act defines an offshore resources activity as:
- a regulated operation (within the meaning of s 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)); or
- an activity performed under a license or a special purpose consent (both within the meaning of s 4 of the Offshore Minerals Act 1994 (Cth)):
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that is being carried out, or is to be carried out, within the area, except an operation/activity determined by the Minister in writing; or
- an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:
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- under a law of the Commonwealth, a State or a Territory determined by the Minister in writing; and
- within an area, as determined by the Minister in writing.
The Amending Act also gives the Minister power under the Migration Act to make a determination to further define the term offshore resources activity.
The Amending Act provides that a non-citizen must hold either a permanent visa or a visa prescribed by the regulations to participate in, or support, an offshore resources activity in relation to any area. To clarify this provision the Amending Act provides that a person may participate in, or support, an offshore resources activity in relation to an area whether the person is on a resources installation or other wise in the area (i.e. a vessel).
Finally, the Amending Act provides that the new deeming provisions do not have the effect of extending Australia's migration zone for other purposes or activities.
IMPLEMENTATION
Schedule 1 of the Amending Act, which provides that non-citizens without the required visa cannot be employed within the migration zone, will commence at the latest on 30 June 2014. Employers in the offshore oil and gas industry performing work in the EEZ such as pipe lay and drilling will need to take the necessary steps to ensure all of their employees have a permanent visa or a visa prescribed by the regulations by the commencement date. A new visa class specifically for an offshore resource worker will be prescribed by regulation to facilitiate this new requirement. This will be required even if previously they had been able to continue with non-citizen crew as though they were operating outside Australia. This will for example mean that employees engaged in international water will need be afforded employment terms specified by their particular visa class and the Fair Work Act 2009 (i.e. awards, National Employment Standard and enterprise agreements).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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