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,
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.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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The Federal Court handed down the largest court imposed fine for breaching subclass 457 visa sponsorship obligations.
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