We are often asked about the working holiday visa and what restrictions are placed on employers who wish to employ the visa holder longer than the stated 6 months. We have condensed information on the work restrictions on this newsletter but please note this it is intended as high-level information only and should you wish to discuss any detail or seek direct advice please don’t hesitate to contact us.
The Working Holiday Maker program (to include visa subclass 417 and 462) allows people aged 18 to 30 (for Canadian and Irish citizens, the aged is extended to up to 35 years of age) to travel and work in Australia for up to 6 months with any one employer over a 12 month period.
Each visa is open to different nationalities and some requirements differ between the 417 and 462 visa subclass.
1st Working Holiday Visa
Applicants can apply online for this visa up to the age of and including 30 years and 35 years for those who hold Canadian or Irish passports. They cannot be in Australia when they apply for this visa. The visa also permits study in Australia for up to 4 months.
2nd Working Holiday Visa
Applicants can apply for a second working holiday while in Australia as long as they have completed 3 months of specified work in ‘regional’ Australia.
The specified work must be in fields such as plant and animal cultivation, fishing and pearling, tree farming or felling, mining or construction.
‘Regional Australia’ is taken to be all of Tasmania, South Australia, and the Northern Territory. All of NSW except Sydney, Newcastle, Central Coast, and Wollongong. All of Victoria except Melbourne metro area and all of Western Australia except Perth metro area. ACT is not considered regional for this visa application.
Please note that for the visa holders who have been granted the 462 (work and holiday visa) the definition of work and regional may vary.
3rd Working Holiday visa
As of 1 July 2019, visa holders will be able to apply for a third working holiday visa if they complete 6 months ‘specified work’ work in regional Australia.
Note that the 6 months work must be carried out after 1 July 2019 so applicants will not be able to apply for the 3rd visa until after January 2020.
Exceptions to 6 months work restriction
We are often asked by clients if there is a possibility of employing a working holiday visa holder longer than their 6 months of work restriction. The answer to this question is yes if you (as the employer) meet any one of the below criteria as per Migration Policy:-
1. Work in different locations
- The employer may be part of a chain and able to move staff between different locations
- The employer may be part of a franchise and able to move the employee to different workplaces
- Work for State and Territory Schools and health care facilities at different locations
- Work at 2 different orchards owned by the same business
- Work for a subsidiary company (owned by the same partner company) but the ABN is different
- Work for different businesses with a different ABN that is owned by the same employer
- The visa holder may be self-employed and provide services for the whole 6 months as long as the one business is not the visa holders only client
- Work for differently owned franchises even though they operate under the same business name
- Work for the same employer with a change of corporate office location within the same city i.e. Sydney CBD to Parramatta
- Work for the same employer with a change of office from one state to another
2. Plant and animal cultivation anywhere in Australia
As an employer, you are able to legally employ working holiday visa holders for up to 12 months if your business employs the visa holder to work in: -
- Harvesting and/or packing fruit and vegetables
- Pruning and trimming trees and vines
- General maintenance crop work
- Cultivate or propagate plants and/or fungi
- Immediate processing of plant products
- Maintenance of animals for the purpose of selling them or their bodily produce
- Immediate processing of animal products such as butchery, shearing, packing, and tanning. Note processing of small goods and retail butchery is not acceptable
- Manufacturing dairy produce from raw material
3. Work in certain industries in Northern Australia only
As an employer, you are able to legally employ working holiday visa holders for up to 12 months if your business employs the visa holder to work in:
- Aged Care and disability services
- Fishing and pearling
- Tree farming and felling
- Tourism and Hospitality
‘Northern Australia’ is defined as all of the Northern Territory, Queensland north of the Tropic of Capricorn and Western Australia north of the Tropic of Capricorn.
Calculating 6 months
How do you as an employer make sure that the 6 months employment is in accordance with the migration regulations. The calculation is defined as: -
“ the 6 months starts from the day the visa holder starts work. It includes full-time, part-time, casual, shift and voluntary work. It is based on the length of time that has passed and not how many hours or days the visa holder has worked”.
The 6-month work restriction begins again if the visa holder is granted another working holiday visa or a bridging visa comes into effect.
Please note that breaks between periods of work in circumstances where the employment arrangement is ongoing - for example, paid or unpaid leave was granted - count toward the 6 month total.
What does the future hold for the Immigration portfolio if we change Government?
We note with interest that the Labor Party has come out this week and advised that if they win the upcoming election that they will increase TSMIT (Minimum threshold for annual salary) to $ 65,000, establish an independent skills authority and use registered training organisations to test workers skills rather than rely on Immigration Officers.
The Coalition has declared that they intend to cap migration numbers at 160,000 per annum and introduce new regional visas requiring applicants to live and work in regional Australia for 3 years before being eligible to apply for residency.