The decision to exempt workers on vessels in the offshore oil and gas industry from visa requirements shows the hypocrisy of the Coalition on border protection and national security, the Maritime Union of Australia has said.
The exemption, granted by the immigration minister, Peter Dutton, in December 2015 is the subject of a high court challenge by the MUA and Australian Maritime Officers Union heard on Tuesday.
The maritime unions are locked in a long-running dispute with the Abbott-Turnbull government over whether workers on vessels supporting the offshore industry need visas that carry Australian pay and conditions.
The Coalition has attempted numerous times to exempt the workers from the requirement. It was thwarted first by the Senate in July 2014 and then the full federal court in March 2015.
When the maritime unions challenged a declaration granting the workers special purpose visas in the high court, Dutton made the determination exempting workers on the vessels from requiring visas entirely.
The unions argue that determination is invalid because it has the effect of totally nullifying changes made by the Gillard government in 2013 requiring that workers in the offshore resources sector have certain visas.
On Tuesday, counsel for the maritime unions Neil Williams told the court the decision meant there was “no opportunity” to identify people working in the offshore resources sector and conduct security checks.
“Our position is that all jobs should be regulated by Australian law and the grant of visas is necessary for the system of security checks.”
The MUA deputy national secretary, Will Tracey, told Guardian Australia “this government claims it cares about border security, but as a result of this determination it doesn’t know who is in the exclusive economic zone”.
“It exposes the hypocrisy of the Turnbull government, where for economic purposes they are happy to open up the front line of our border security system,” he said.
The unions are particularly concerned that the exemption allows employers to hire foreign workers without first checking whether Australians are able to fill the roles, and to pay them less than Australians.
Tracey said that two-thirds of the several thousand workers in the offshore oil and gas industry worked on or from vessels (as opposed to fixed installations) conducting support tasks such as laying pipes, and therefore could be impacted by the decision.
Tracey said industry had not undertaken mass layoffs of Australian workers because of the chance the unions could win the case and they would be forced to rehire Australian workers. But a union loss would trigger a “free for all”, he said.
“[The government] is opening up Australia’s most lucrative industry, including workers with high skills sets such as welders, riggers, officers and engineers to cheap competition … employers can bring in workers at any classification and pay them at any rate.”
Counsel for the immigration minister Stephen Donaghue argued that migration legislation allows the minister to exempt classes of workers in the offshore resource sector from visa requirements.
He said Dutton’s determination exempting workers on vessels did not have the effect of totally nullifying changes made by the Gillard government in 2013 because the requirement for visas still applied to workers on installations such as oil and gas rigs.
He said the court should not second-guess exercise of that discretion, which could be done to implement government policy, such as to attract foreign investment or help projects with high capital costs.
Asked by chief justice Robert French whether Dutton had given a reason for the exemption, Donaghue replied he had given no reason exceptan explanatory statement, which was “not particularly enlightening”.
The statement said the decision was intended to exempt workers on vessels, after consultation with the Australian Petroleum Production and Exploration Association (Appea) and the Australian Mines and Metals Association (Amma).
Amma’s chief director of policy and public affairs, Scott Barklamb, has said requiring overseas workers to have certain classes of visas conflicts with global industry practice and would cause major costs and disruptions in the offshore oil and gas industry.
Amma and Appea have argued that foreign workers are employed as supervisors or other specialists, which enabled creation of other jobs for Australians.
Tracey said: “It’s a false argument to say there aren’t Australians in the oil and gas industry who could fill the jobs, we have a mature industry.
“What are [resource industry groups] saying, we aren’t smart enough to fill them?
“Even if there is a requirement for this specialised work, they can do it under the current migration system. They just need to hire them on visas subject to Australian law.”
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