MUA v The Turnbull Government

The battle between the Abbott-Turnbull Government and the MUA will come to a conclusion when the High Court hands down its ruling on a dispute about whether Australians have a right to work in Australia’s offshore industry.

Today the final hearing is taking place with a judgment likely to be reserved.

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The MUA, along with the Australian Maritime Officers’ Union took the Assistant Immigration Minister, who at the time was Senator Michaelia Cash, to Federal Court in 2014, after she used an obscure ‘legislative instrument’ to ignore the will of the Senate.

International Transport Workers’ Federation President and MUA National Secretary Paddy Crumlin said he was optimistic the court would see through the blatant skullduggery and legislative trickery the Government had used to ignore the Senate and the Federal Court.

“The ITF is watching the matter very closely because the organisation sees it is a blatant attack on seafarers regardless of where their home may be, and the ITF believes the utilisation of a cynical and flawed legislative process undermines certainty and investment confidence in Australia's hydrocarbon industry,” Mr Crumlin said.

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Deputy National Secretary Will Tracey said even if the Government was found to have used legitimate legal powers in allowing developing world workers, not protected by any of Australia’s employment, wage or safety laws, onto Australia’s resource projects, it would still be an insult to workers and the unemployed.

“Refusing access to Australians to jobs created by Australia’s mineral wealth does not pass the pub test,” Mr Tracey said.

“The offshore oil and gas industry in Australia is dominated by some of the world’s biggest and most profitable companies, so I have a hard time believing they need to pay some poor worker $2-an-hour instead of paying an Australian worker an acceptable wage.

“These are the same companies that argue to pay less tax in Australia. If you’re not providing employment opportunities for Australians and you’re paying minimal to zero tax in Australia, one has to ask what’s the benefit of those companies operating in Australia?”

BACKGROUND

In 2012, the Federal Court of Australia handed down a decision in Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 that highlighted the issue of non-citizens being able to work on Australian offshore vessels without visas when vessels were located outside the Migration Zone.

The then-Labor Government protected Australian jobs in the offshore oil and gas sector by responding to the 2012 Allseas case with a Bill that extended the Migration Zone to address a flaw in Australia's migration law.

Within six months of its election the Liberal National Government introduced a Bill to repeal the Migration Amendment (Offshore Resources Activity) Act 2013 (ORA ACT) that was passed by the ALP-led Parliament in 2013.

It also introduced a Regulation under the ORA Act that specified an inappropriate visa class as a work visa to conform with the ORA Act (the Maritime Crew Visa, which is a transit visa for visiting international seafarers, not a work visa).

When the Senate rightly disallowed the regulation specifying that visa, introduced a Ministerial Determination ('Immi 14/077') effectively making the ORA Act null and void in complete disregard to the wishes of the Parliament. The MUA and AMOU challenged Ministerial Determination ('Immi 14/007') in the Federal Court with Justice Buchanan validating the use by the Government of Ministerial Determination Immi 14/007 in a judgment delivered on 15 September 2014.

The MUA and AMOU successfully appealed the decision to the Full Court of the Federal Court. 

Following the Full Federal Court decision, within 24 hours introduced another determination (‘Immi 15/073’) and subsequently (‘Immi 15/140’) to again allow cheap foreign labour in the offshore oil and gas sector.