The Minister for Education Employment and Workplace Relations, Senator Chris Evans recently announced that the 31 recommendations put forward by the Resourcing the Future: National Resource Sector Employment Taskforce Report (Report) be accepted in principle by the Federal Government.
Of key interest to proponents of mega resource projects was the acceptance in principle of a recommendation to introduce a special form of Labour Agreement called an Enterprise Migration Agreement (EMA). A Labour Agreement is a legal contract between the Australian Government and an employer that allows the employer to bring in skilled overseas workers to Australia on either a temporary or permanent visa. In some situations a Labour Agreement is the only option available to an employer who wants to access employer-sponsored migration programs. Labour Agreements are often used when the skills an employer needs are not on the relevant list of approved occupations but a genuine shortage exists.
Employers have been justifiably frustrated by the time it takes to negotiate a Labour Agreement with the Department of Immigration and Citizenship (DIAC) and stakeholders. The average processing time has been between six and nine months, with some taking over 12 months.
Multiple employers engaged on a mega project will be able to gain the benefit of a single EMA. That is, rather than each employer on a project negotiating its own Labour Agreement with DIAC, those employers would be pre-qualified under the EMA. The EMA would be negotiated by the project owner or EPCM contractor responsible for selecting construction contractors on the project.
By using an EMA, the project owner or EPCM contractor would be able to secure streamlined access to migration by facilitating construction contractors on the project to be pre-qualified under the EMA. This will significantly reduce the timeframe within which construction contractors can be authorised to bring in overseas workers in crucial construction classifications. The Report suggests that EMAs must be able to be negotiated within a three-month timeframe.
What do employers need to show?
The Report recommends that proponents of mega projects seeking an EMA meet a number of criteria. These include:
- A credible workforce plan that justifies the need for overseas workers.
- Evidence of market testing for trades and occupations.
- Evidence of recent domestic recruitment action and clear explanation as to why Australian citizens could not be trained for the position (particularly in relation to lower skilled roles).
- A credible plan for training Australians to fill lower skilled roles (where the need is ongoing).
- Identification of contractors that have responsibility for parts of the project that do not currently operate or have a base in Australia.
- Skills clearances provided by a reputable Registered Training Organisation (RTO), where there is a demonstrated recent history between the RTO and the enterprise.
- Evidence of appropriate programs that provide induction site and safety training to Australian standards and to settle overseas workers into Australian life.
- Social inclusion programs.
- Training programs for indigenous people with a focus on employment outcomes.
- Evidence of consultation with the relevant industry stakeholders, including relevant trade unions.
When will EMAs become an available option?
According to DIAC, mega project proponents will be able to apply for EMAs within about a month to six weeks, once the Australian Government has finalised its EMA policy.
The details of that policy will determine whether the Australian Government will be able to assist the large number of employers who are already experiencing skills shortages due to the resources boom. In Western Australia alone there is an estimated $225 billion worth of resource and infrastructure projects that are either under construction, committed or under consideration. WA Training and Workforce Development Minister, Peter Collier is very concerned about research showing that WA could have a shortage of up to 150,000 skilled workers.
Having met with Federal Skills, Jobs and Workplace Relations Minister, Chris Evans and Immigration and Citizenship Minister, Chris Bowen, Collier is also concerned that the criteria for qualifying for an EMA will result in very few EMAs being made. In particular, Collier revealed that the current criteria for projects qualifying for an EMA include the need for projects to be valued at $10 billion or more, with a peak construction workforce of 15,000. There is only a handful of proposed projects in Australia that would qualify for an EMA under those criteria. The WA State Government has recommended a reduction in the value of the project to $2 billion, with a workforce requirement of 1000.
How can we help?
There will be much preparatory work to be done by proponents of mega projects or their EPCM contractors in preparation for negotiating an EMA with DIAC. The proponents of mega projects due to commence construction within the next 12 months should seriously consider taking preparatory steps now to ensure that they are ready to apply for an EMA when they become available.
Our specialist industrial and migration lawyers (including migration agents) are well placed to assist with the negotiation of EMAs. Amongst other things, we can facilitate high-level consultation with relevant government authorities and trade unions, and represent EMA applicants at those discussions. We can also draft all necessary application documents, ensure all applicable Australian labour and migration laws have been complied with and make submissions to DIAC wherever appropriate.
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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.