The High Court recently brought an end to the ongoing battle between the Federal government and the Maritime Union of Australia (MUA) about the visa status of offshore workers in the oil and gas industry.
Prior to 2013, visas were not required for non-citizens working on vessels involved in oil and gas offshore activities, provided they were not attached to the seabed or to a resource installation in the Australian migration zone. In 2013, the Labour government introduced changes to the Migration Act 1958 (Cth) (Act) which meant all non-citizens undertaking offshore resource activities to hold a valid visa. A power was reserved to allow the government to except some operations or activities from the definition in future.
The amendments raised concern in the industry that Australia’s competitiveness would be compromised due to the additional costs and red tape involved in obtaining visas for a limited number of highly specialised workers who often never enter an Australian port.
In response, the coalition in 2015 used the reserved power to introduce a determination excepting for all operations and activities using a vessel or structure that is not a resource installation. The practical effect was to once again remove the need for non-citizens engaged on a vessel or structure not attached to the seabed to hold a valid visa.
Following a challenge by the MUA, the High Court unanimously found that the determination exceeded the limits of the government’s powers. The Court found that the Act only permits limited exceptions for particular activities or operations from time to time. The general nature of the determination undermined the intention of the 2013 amendments to the Act and therefore declared it to be invalid.
So where does that leave non-citizens working in the offshore industry? From 31 August 2016 all foreign workers engaged on vessels or structures involved in offshore activities must hold a valid visa, usually a subclass 400 visa or subclass 457 visa. Employers who engage such workers are encouraged to seek urgent assistance on what steps must now be taken.