THE Federal Court will this week begin hearing a Maritime Union of Australia (MUA) appeal against last month’s Federal Court decision concerning migration arrangements in the offshore resource industry.

Justice Buchanan’s 15 September 2014 decision rejected an MUA / AMOU challenge to a ministerial determination made by Assistant Minister for Immigration & Border Protection, Michaelia Cash, under the Migration Amendment (Offshore Resources Activity) Act 2013 (the ORA Act).

Minister Cash’s determination was to effectively maintain the longstanding status quo of visa arrangements in the offshore resources sector, negating the intended purpose of Labor’s ORA Act to require all non-Australians working on offshore projects to hold temporary working visas.

While the grounds of appeal have not been published, the original union challenge argued the ministerial power granted under the ORA Act could not be used to negate the entire operation of the Act, as happened in this case. Justice Buchanan found while there was strength in the union argument, the ORA Act did not specify a minimum level of coverage that should remain following any exercise of the ministerial power, and therefore the ministerial determination was a valid exercise of that power.

It appears the AMOU has not joined in the appeal despite teaming up with the MUA to run the original challenge. The MUA appeal has been set down for a callover (a type of preliminary conference) for this Wednesday 29 October 2014 before Chief Justice Allsop in Sydney.

AREEA understands the separate AIMPE challenge (lodged several months ago at the same time as the original AMOU / MUA challenge) has yet to be determined and will be held off until the MUA appeal is resolved. The AIMPE challenge was put on hold while the original AMOU / MUA challenge was heard and remains deferred pending the outcome of the latest appeal. Depending on the outcome with the MUA’s appeal, the AIMPE challenge may be disposed of without a full hearing.

The appeal means there remains some short-term uncertainty within the offshore resource industry as to future migration requirements although the status quo at the present time is clear (see decision for details of the implications of the original Federal Court decision). AREEA will continue to keep members updated about potential impacts on your operations.

Please contact AREEA’s manager of migration services Jules Pedrosa ((02) 9211 3566; [email protected]) or AREEA’s senior workplace policy adviser Lisa Matthews ((03) 6270 2256; [email protected]) for further details.