CHAPTER 1


CHAPTER 1

Introduction

Reference

1.1        On 23 August 2012, the Senate referred the provisions of the Protecting Local Jobs (Regulating Enterprise Migration Agreements) Bill 2012 (the bill) to the Senate Education, Employment, and Workplace Relations Legislation Committee (the committee) for inquiry and report by 29 October 2012.[1] The Senate subsequently extended the reporting date to 12 March 2013.[2]

Conduct of inquiry

1.2        The committee advertised in The Australian on 29 August 2012, calling for submissions by 13 September 2012. Details of the inquiry were also made available on the committee's website.[3]

1.3        The committee contacted a number of organisations inviting submissions to the inquiry. Submissions were received from 15 individuals and organisations, as detailed in Appendix 1.

1.4        A public hearing was held in Melbourne on 25 October 2012. The witness list for the hearing is at Appendix 2.

Background

1.5        Enterprise Migration Agreements (EMAs) are intended to streamline negotiation arrangements for access to overseas workers and guarantee faster processing times for subclass 457 visa applications.[4]

1.6        The policy emerged from recommendations made by the National Resource Sector Employment Taskforce (NRSET).[5] The NRSET was established by the government in 2009 to examine how to respond to the skills demands of more than 75 major resource projects in the pipeline. NRSET provided its report to the government in July 2010, and made 31 recommendations to address skills shortages in the resources sector. Amongst these recommendations, was the recommendation that the government introduce EMAs.[6] 

1.7        In March 2011 the government accepted all 31 recommendations. Shortly afterwards, EMAs were announced in the 2011 Federal Budget.[7] In September 2011 the EMA program formally commenced with the release of the government's EMA Submission Guidelines. The Department of Immigration and Citizenship (DIAC) advised that these guidelines were the result of consultations with unions, industry and government agencies.[8]

1.8        EMAs are available to projects with a capital expenditure of at least $2 billion and a peak workforce of 1500 workers. Applicants must submit a comprehensive training plan that demonstrates how the project will equip Australian workers to meet future skills needs in the resources sector. A Deed of Agreement is negotiated covering the entire project, so the parties do not have to negotiate a number of separate labour agreements with individual sub-contractors.[9]

1.9        Workplace relations advice is available for project owners well as the subclass 457 visa workforce from the Department of Education, Employment and Workplace Relations (DEEWR). This includes advice on salary and employment conditions.[10]

1.10      The government launched the Jobs Board on 10 June 2012. The Board is designed to provide Australian job seekers with an opportunity to apply for jobs in the resource sector.  The Jobs Board also incorporates jobs listings advertised elsewhere, such as jobs listed by the Australian Mines and Metals Association and the Resource Channel. DEEWR advised it is working to continually improve the website, and recent changes include improvements to the job seeker registration profile and an improved search engine.[11]

1.11      Currently, the Jobs Board has almost 3000 jobs listed with a consistent amount of interest from job seekers comprising 10 000 visits each week.[12]

1.12      The government gave 'in principle' approval on 25 May 2012 for an EMA with the Roy Hill iron ore mining project in the Pilbara region of Western Australia. The EMA permits Roy Hill to sponsor up to 1715 workers through the 457 visa program during the three year construction phase, where Australian workers cannot be found. The project requires more than 8000 workers, with the remaining 6285 jobs to be filled by Australian workers. As part of the EMA, Roy Hill must provide 2000 training places for Australians, including more than 200 Australian apprentices and trainees.[13]

1.13      The specific terms of the Roy Hill EMA are still subject to negotiation between the parties. DIAC confirmed during the Melbourne hearing that:

The Deed of Agreement has not yet been executed, no contractors have been able to access overseas workers through the EMA, and no visa applications have been lodged or decided in relation to the EMA.[14]

1.14      The committee was advised that while there is no 'end date' both parties are doing their best to 'progress the negotiations'.[15] The final decision to grant an EMA is made by the Minister for Immigration and Citizenship, following advice from DIAC (informed by consultations with other government departments).[16] The status of these negotiations means that the government will have time to take into account the recommendations made by the committee in this report.

Purpose of the bill

1.15      The bill was introduced in the House of Representatives by Mr Adam Bandt MP, on 18 July 2012.

1.16      The bill proposes to create a legislative framework for EMAs to ensure that such agreements are only used where genuinely necessary and do not adversely affect local job opportunities.[17] To promote transparency of the EMA process, the bill proposes that all EMA agreements be tabled in Parliament.[18]

1.17       Broadly, the bill proposes to amend:

  • the Fair Work Act 2009 to include the terms 'EMA participant' and 'enterprise migration agreement';
  • the Fair Work Act 2009  and the Migration Act 1958 to outline the terms and conditions relevant to the Minister approving EMAs, as well as further conditions the Minister can propose;
  • the Migration Act 1958 to include and define the terms 'EMA participant', 'enterprise migration agreement', 'Workplace Relations Minister' and 'local jobs board';
  • the Migration Act 1958 to incorporate terms that regulate the application of EMAs to ensure they are used only when necessary and do not impact local employment; and
  • the Migration Act 1958 to require the Minister to table a copy of an EMA as soon practically possible after it is agreed to.[19]

1.18      Mr Bandt MP has subsequently circulated amendments to the bill that would broaden its application to cover all types of work agreements, such as Regional Processing Agreements.[20]

Key provisions of the bill

Conditions for approval of EMAs

1.19      The bill seeks to provide that the Minister for Workplace Relations must not agree to make an EMA unless he or she is satisfied that the EMA participant has complied and will continue to comply with workplace laws.[21] The bill seeks to permit the relevant Minister to impose conditions on the agreement of EMAs so that the employment of local and recently retrenched workers is prioritised.[22] Conditions include that the EMA participant has a local jobs plan, and the Minister could require the participant to employ a specified number of Australian residents on the project concerned from one or more of the following groups:

  • people living in the area of the project;
  • people recently retrenched;
  • people of culturally and linguistically diverse groups experiencing high rates of unemployment; people from Indigenous groups; and/or
  • people from regions of high unemployment.[23]

1.20      Additionally, the EMA participant may be required to provide specified training to persons employed from the above list. The Minister could also require that the EMA participant directly provides training or funds training to other Australian residents who are not employed by the EMA participant at that time.[24]

1.21      One or more of these conditions could be placed on employers before an EMA is made and there would be no limits to the grounds on which the Minister could refuse to make an EMA.[25]

Definition and insertion of terms in the Migration Act 1958

1.22      The bill proposes to insert and define a number of terms in the Migration Act 1958.

  • An EMA participant would be either the project owner or the prime contractor for the resources project;
  • An enterprise migration agreement would be a work agreement made with an EMA participant to grant visas for work on a resources project;
  • The Workplace Relations Minister would be the Minister administering section 1 of the Fair Work Act 2009; and
  • The Minister would also maintain the local jobs board, which would consist of a website that would advertise jobs to be filled in the resources sector.[26]

Regulation and tabling of EMAs

1.23      The bill proposes to amend the Migration Act 1958 to provide that the Minister for Immigration must not make an EMA unless the Minister for Workplace Relations consents to the agreement being made and the agreement is made subject to any conditions determined by the Workplace Relations Minister (as discussed above).[27]

1.24      The conditions imposed by the Minister for Workplace Relations must be submitted to the EMA participant in writing and would be considered a sponsorship obligation.[28] The bill does not place any limits to the sponsorship obligations that may be imposed under an enterprise migration agreement.[29]

1.25      In addition, the Minister for Immigration and Citizenship would not be able to make an EMA unless he or she was satisfied that:

  • The EMA participant has made all practicable attempts to employ local workers for the jobs to be covered by the EMA; and
  • The jobs have been advertised on the local jobs board and more widely.[30]

1.26      As soon as the Minister for Immigration and Citizenship finalises an EMA, the Minister must table a copy of the agreement in each House of Parliament promptly.[31]

Compatibility with human rights

1.27      The explanatory memorandum contains a Statement of Compatibility with Human Rights. The Statement maintains that the bill is compatible with human rights and would not engage any of the applicable rights or freedoms. The Parliamentary Joint Standing Committee on Human Rights has considered the bill and sought clarification from Mr Bandt on 'whether the bill could be said to engage the right to work contained in Article 2 of the International Covenant on Economic, Social and Cultural Rights'.[32]

Acknowledgement

1.28      The committee thanks those individuals and organisations who contributed to the inquiry by preparing written submissions and giving evidence at the hearing.

Notes on references

1.29      References in this report to the Hansard for the public hearing are to the Proof Hansard. Please note that page numbers may vary between the proof and the official transcripts.

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