Rail giant Aurizon's power to give permanent residency to 11 foreign train drivers - even as it sacks hundreds of workers in an overhaul of operations "to remain competitive" - may face a legal challenge from the rail workers' union, after doubts emerge about whether the deal with the government was validly negotiated.
The Rail, Tram and Bus Union (RTBU) is looking at possible legal action over a previously unknown labour agreement that was revealed last week.
Labour agreements are deals negotiated between businesses and government allowing foreign workers to be imported outside the ordinary 457 (temporary) or permanent visa schemes. They require the business to consult with the relevant union before they can go ahead.
A spokesperson from the RTBU said the union was seeking legal advice "to see what recourse we may have to challenge Aurizon's labour agreement," based on an alleged failure by the company to consult with the union.
The deal secured by WA-based Aurizon subsidiary Australia Western Railroad became known last week following the publication of a list of labour agreements on the Department of Immigration website. It came into effect in June 2016.
Two labour agreements were originally in place, starting in 2011 and 2012, that entitled the company to bring in almost 200 foreign workers on temporary visas at the height of the mining boom.
According to an Aurizon spokesperson the 2016 agreement was "specifically for the purpose of allowing the 11 employees covered by the original agreement to apply for permanent residency."
They claimed the company did consult with the union around this agreement, “starting in December 2014."
However the Rail, Tram and Bus Union claims it was consulted in December 2014 about a separate labour agreement for Aurizon to bring in another 122 foreign train drivers on 457 visas.
The union rejected this proposal, and claims it has received no consultation about any other labour agreement.
Dr Joanna Howe, Associate Professor in law at the University of Adelaide, said the union’s concern was justified.
"Each labour agreement, whether it was for a company that had one previously or for a completely new company, is a new agreement and therefore does require consultation with the relevant parties under the guidelines,” she said.
"So the failure to do that is a breach."
Aurizon is sacking hundreds of workers in Queensland this year, including train drivers. A June statement from the company claimed the move is to “address varying demand in the resources sector as well as changes to Aurizon's operating footprint."
A government spokesperson said that “the union’s claims reported by SBS are nothing more than petty politics.”
"The Rail, Tram and Bus Union had no problem when the Labor Government approved a labour agreement for Australian Western Railroad in 2011 to bring in 195 workers on 457 visas.
"The union appears to have had no problem to another agreement approved by the previous Labor Government in 2012 to allow 105 of those workers to transition to permanent residency.
"The 2016 agreement does not allow for the hiring of new or additional overseas workers. It is only to allow 11 of the existing 457 visa holders brought in under the 2011 agreement to transition to permanent residency."
University of Adelaide’s Dr Howe noted that as part of the application process for a standard 457 visa, businesses must identify past, present and planned redundancies.
"If the company in this situation didn’t have to do that as part of the labour agreement process, then that’s a real deficiency because those Queensland workers should have had the option of meeting the labour force needs in WA,” Dr Howe said.
"In order for the integrity of this program to be preserved, Australian workers have to be given first opportunity for those jobs."
Queensland state MP for the seat of Keppel, Brittany Lauga, called for the labour agreement to be scrapped and told SBS World News “I don’t think Aurizon’s excuses cut it".
"Aurizon’s offered other workers the opportunity to relocate for other jobs in their workforce, so I don’t understand why they’re not doing that with these train drivers."
The LNP's Michelle Landry, from the federal seat of Capricornia which covers Rockhampton where many Aurizon workers face unemployment, declined to comment.