Worker protection in the Migration Act and Regulations: illusion or reality in the offshore oil and gas industry?

Abstract

Reforms to the Migration Act and Regulations in 2008 were designed to prevent the subclass 457 visa program from being used to exploit migrant workers and undercut Australian conditions. Stakeholder consultation, market-rate requirements, and ongoing compliance obligations extending to workplace and occupational health and safety laws were intended to restore confidence in the integrity of the temporary skilled migration scheme. The application of Australia’s migration laws to the offshore oil and gas industry is complicated by issues surrounding the definition of the migration zone and confusion about the circumstances in which employees may or may not require a visa to work. The recent Federal Court decision in Allseas Construction SA and the Minister for Immigration and Citizenship found that overseas employees working on vessels engaged in laying gas field pipelines are not working in the Australian migration zone and therefore are not required to have working visas. Recent changes to the employer sanctions regime were intended to discourage employers from breaching the rules and encourage strict compliance. Some overseas workers, however, are excluded altogether from regulation under the Migration Act and Regulations, even though the skills shortages in the resources sector have created strong demand for overseas workers. Unions and others have, therefore, expressed renewed concerns about the potential for overseas workers to be exposed to underpayment, abuse, and substandard working conditions.