After years of uncertainty over the issue of whether foreign
workers in Australia's offshore sectors are required to have
Australian work visas, it seems that the tides have turned yet
again, leaving the future status of such foreign workers'
employment – and the booming oil and gas industries at large
– uncertain. In a recent decision, the Federal Court
decided that these foreign workers are required to hold work
visas. In response, the government has vowed to appeal the
decision and introduce an interim measure to allow them to work
without the visas. In all of this, the offshore industry is
forced to wait for what will happen next whilst scrambling to try
to comply with these immigration requirements.
In Australian Maritime Officers' Union v. Assistant
Minister for Immigration and Border Protection  FCAFC
45, the Federal Court was presented with the issue of whether the
Minister for the Immigration and Border Protection had power under
The Migration Act 1958 (Cth) to determine that offshore
activity was excluded from the migration zone and, thus, work visa
and other immigration requirements did not apply to non-Australian
workers in such offshore sectors. The Maritime Union of
Australia (MUA) and Australian Maritime Officers' Union (AMOU)
appealed the Minister's determination, seeking to reinstitute
immigration requirements upon overseas workers. On 26 March
2015, the Federal Court unanimously upheld the MUA and AMOU appeal,
essentially requiring offshore sector non-citizen employees to hold
visas once again.
In response, the government has indicated that it will appeal
the Federal Court's decision, as well as introduce a temporary
legal instrument to shield offshore industry employers and foreign
employees until the issue is fully resolved. However, it is
unclear what that instrument will look like and when it will take
effect. Even if special leave is granted to appeal the
Australian Maritime Officers' Union decision, the
hearing and determination of an appeal would not likely take place
by the end of 2015.
The history leading up to last week's decision is
tumultuous. In 2012, in Allseas Construction SA v.
Minister for Immigration and Citizenship  FCA 529, the
Federal Court found that workers on two vessels owned by
Swiss-based Allseas Construction fell outside of Australia's
migration zone, thus eliminating the need for work visas. In
response, the government at that time introduced the
Allseas bill, which required anyone engaged in work
related to an offshore resources activity to maintain an Australian
work visa. However, the Allseas legislation was
introduced mere months before the new Liberal-National Coalition
government took office in late 2013, and one of the first steps
that the new government took was to seek to repeal the
Allseas legislation. When the repeal stalled in the
Senate, the Coalition attempted to enact a regulation to allow the
Immigration Minister to grant offshore resource workers a new type
of visa; however this was rejected by the Senate.
On the day following the Senate rejection, Assistant Immigration
Minister Michaelia Cash made a determination that reversed the
Allseas legislation and which allowed the oil and gas
sector to attract foreign labor yet again, sans work visa
or immigration issues. The unions' challenge to Senator
Cash's determination was rejected by Justice Buchanan last
September. And finally now the Federal Court has set aside
Justice Buchanan's ruling last week and unanimously upheld MUA
and OMUA's challenge, holding that Senator Cash's
determination was "not authorised by s 9A(6) of the
[Migration] Act or otherwise and is invalid", and holding that
offshore sector non-citizen employees are indeed required to hold
More than 400 foreign workers currently engaged in laying
undersea pipes and building maintenance for other structures are
impacted by the Federal Court ruling. In addition to its
intention to appeal the Federal Court's ruling, the government
intends to introduce an interim measure to allow the offshore
industry employers and foreign employees to operate without work
visas until the issue is fully resolved in the courts or through
We will continue to monitor these important developments for our
clients with employees in the offshore resources sector.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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