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May 23, 2012 – 10:40AM

The Federal Court has deemed that foreign workers on two pipe-construction vessels, used to build the giant $43 billion Gorgon/Jansz-lo gas project off Western Australia, are working outside Australia’s migration zone and therefore will not need to apply for Australian work visas.

In a decision handed down on May 18, and which was published today, Justice Neil McKerracher in the Federal Court in Perth said he was satisfied that the Lorelay and Solitaire vessels operated by Switzerland-based Allseas Construction are not “resources installations” as defined in the Migration Act. The court’s decision, however, was narrowly phrased to apply only to the two vessels deployed by Allseas Constructions while they are building the Gorgon/Jansz-lo project under contract to Chevron.

The issue of foreign workers has been highly controversial in Western Australia, where the dispute over foreign workers on the Gorgon project flared into a protest march in November in which 1000 trade union members jammed central Perth as they accused Allseas and Chevron of employing the workers illegally.

The unions argued Allseas and Chevron were favouring foreign workers over Australians. The Lorelay and Solitaire are building undersea pipelines for the gas fields, which are located 80 kilometres and 130 kilometres west of Barrow Island, off Western Australia. In his decision, Justice McKerracher rejected the Immigration Minister’s contention that there was no issue and that the court did not have jurisidiction. He also noted that none of the Attorneys-General had sought to intervene in the case.

The judge said there was a genuine matter to be decided and he had the discretion to make declarations “which in my view are deliberately specific, narrow and suitably confined in their scope to deal with the precise dispute which has been raised in the proceeding”. Justice McKerracher said the vessels building the pipeline did not fit the definitions of either “fixed structures” or “mobile units” under the Migration Act, although the pipeline they were building did fit the definition of a “resources installation”.

And he said while section 5(6)(b) of the Migration Act provided that a person on board a resources installation was deemed to have entered Australia when the installation was attached to the Australian seabed, “the workers on the Lorelay and Solitaire are not ‘on board’ the pipeline”. “They are ‘on board’ the vessels which, by reason of section 5(13), are not resources installations and therefore not part of the migration zone,” Justice McKerracher said.

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