Rail giant Aurizon has been granted the power to bring in foreign train drivers and offer them permanent residency despite the occupation not being eligible for a 457 visa - and a union claim that the jobs could be filled locally.
The government quietly released a list of businesses with “labour agreements” on its website on Monday night. The list provides the first insight into the controversial program following years of calls for transparency by legal experts, a Senate committee and the Labor Party.
On the list is Australia Western Railroad (AWR), a Western Australia-based subsidiary of Aurizon.
A labour agreement can be made between the government and a business when there is a demonstrated need that cannot be met in the Australian labour market and standard migration arrangements are not appropriate. Businesses are required to consult with unions before the government decides whether to approve an agreement.
Bob Nanva, National Secretary of the Rail, Tram and Bus Union (RTBU) said there is "simply no need" for rail companies to use foreign train drivers in the current environment.
"The use of 457 visas is meant to be restricted to areas where there is a skills shortage, and gap in the domestic labour market. But this example shows that the system is a sham, and employers are being given too much latitude," he said.
"We have a highly skilled workforce here in Australia, and Australian train drivers should be getting the opportunity to fill these positions first."
Aurizon is cutting more than 300 positions, including train drivers, in Queensland this year. Their labour agreements allowed them to initially bring in foreign train drivers, and now offer them permanent residency that would not otherwise be available.
Aurizon declined an invitation to say how many drivers would receive permanent residency. A spokesperson said only that it was a "restricted group".
Between 2013 and 2016, the number of labour agreements that the government signed annually doubled, according to information released in July as part of Senate Estimates. More than 100 were approved in the 11 months to the end of May.
Maze of agreements
According to the recently published list, a labour agreement between the government and AWR came into force in June 2016. The RTBU claims it was not notified of this proposal.
A spokesperson for Aurizon said the agreement refers to "arrangements that were put in place with a restricted group of existing train drivers on 457 visas to convert to permanent residency".
The company previously had a labour agreement that commenced in 2012, signed during the Gillard Government when Bill Shorten was Minister for Workplace Relations. This earlier agreement allowed AWR to bring in 50 foreign train drivers in the first year and more in subsequent years. Most were from the UK or South Africa.
The agreement is only publicly known due to freedom of information disclosures from the Department of Immigration and Border Protection. Mr Shorten has been contacted for comment.
In December 2014, AWR sought a separate labour agreement that would allow it to bring in 122 new foreign train drivers according to the RTBU, which was consulted. The outcome of this proposal is unknown.
"Despite the RTBU’s clear opposition to AWR’s proposed labour agreement, the Union received no reply and was not advised of the outcome," Mr Nanva said.
Aurizon declined to comment directly on these negotiations or the need for the new agreement. Its spokesperson said the company "does not have a business requirement to source international train drivers, and does not currently have an agreement in place for this purpose".
Only 20 requests for company specific labour agreements have been declined since 2011, according to Senate Estimates disclosures.
Need for transparency
Mr Nanva said he had "significant concerns" over the lack of transparency around labour agreements.
A spokesperson from the Department of Immigration and Border Protection said in an email that the list was released "to increase the transparency of the labour agreement program and ensure that this information is more easily available to the public where required".
"Further details of individual agreements are not included on the website as it is considered appropriate that more sensitive business information contained in labour agreement requests and agreements remain confidential," they said.
The number of foreign workers in Australia on a labour agreement totally 3220 in March.
Associate Professor Joo-Cheong Tham from Melbourne Law School said the "virtually unregulated discretion" of the Immigration Minister to grant concessions in relation to minimum salary levels, English language requirements and eligible occupations means labour agreements risk undermining the overall integrity of the 457 visa scheme.
"This is especially given the secrecy surrounding these concessions - when they are granted, and what concessions have been granted," he said.
Dr Joanna Howe, Associate Professor in Law at the University of Adelaide, called for the concessions and number of workers allowed under each agreement to be published.
"There’s no effective way for Parliaments or the public to scrutinise either the making of or the content of labour agreements because the information from the employer is treated commercial in confidence," she said.
"For this information to be meaningful we need to know where these labour agreements allow these workers to go within the Australian labour market and to do which jobs."
Update - Aurizon Statement
Aurizon issued a statement on August 2nd following the publication of this story:
"In 2014 Aurizon undertook an exhaustive but unsuccessful recruitment process in Western Australia to source local drivers for its WA operations. This was at a time when there was high demand for train drivers in the resources sector in the region.
"To address this shortfall in the Western Australian labour market and meet customer needs, an agreement was put in place which saw Aurizon source a small number of drivers from overseas.
"The 2014 agreement provided these particular employees the opportunity to apply for permanent residency. This agreement has since expired so a new agreement was put in place in June 2016 specifically for the purpose of allowing the 11 employees covered by the original agreement to apply for permanent residency.
"These arrangements were not for the hiring of more overseas workers. Aurizon does not have a business requirement to source international train drivers. We have not used and have no plans to use labour agreements for this purpose in Queensland."
Know something about your employer's labour agreement? Make sure you are outside your work internet network, then visit this form to share information and files with SBS World News anonymously.