Foreign crews and workers no longer exempt from Visa requirements and minimum pay conditions in offshore work

02 September 2016

Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor [2016] HCA 34

TheForeign crews and workers on ships operating in the offshore resources industry will be required to obtain visas and receive minimum pay conditions, after a recent decision by the High Court.

Legal details

The High Court ruled that the exemption determination exceeded the limited terms of power conferred on the minister to exempt an operation or activity from the definition of ‘offshore resources activity’ under section 9A(6) of the Migration Act 1958 (Cth) (Migration Act).

The Court noted the following in its reasons for the decision:

  • The wording of the ministerial power to create an exception to that definition applied to an operation or activity, which may include multiple operations or activities and might extend to a class of operations or activities, but is not well suited to except operations or activities to some specified extent [21];
  • The determination did not conform with the ordinary conception of a power to provide for exceptions because it deprived the general rule of section 9A(1) of all content and so entirely negated that general rule’s operation [22]-[23];
  • The text and context of section 9A(6) imply that its purpose is to provide limited exceptions for particular activities or operations to which the relevant minister determines from time to time the visa regime should not apply [25]; and
  • The practical effect of the Minister’s exemption determination was to repeal the operation of section 9A(1) and thereby thwart its legislative purpose to extend the operation of the visa regime to non-citizens on ships or unmoored structures who are in an area to participate in or support an offshore resources activity [25].
Implications for businesses

This decision is important because it requires all non-Australian workers in the offshore resources industry who previously benefited from the determination to apply for and obtain visas subject to local pay and conditions before they can continue to work in the offshore resources industry.

Transport, shipping and other companies who employ non – Australian workers in the offshore resources industry will need to act without delay in order to ensure that they continue to comply with Australian employment and immigration law requiring visas and comparable Australian pay and working conditions for these workers.

HWL Ebsworth is an integrated full service commercial law firm with national reach and experience in handling and obtaining working visa applications of this kind.

We have two registered Migration Agents who can provide advice and assist to prepare and lodge visa applications:  Melanie McKean (MARN 0006966) and Andrew Allan (MARN 1279498).

This article was written by Anthony Highfield, Partner and David Derbyshire, Graduate at Law.

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