Business owners and managers will know that finding the right person for a role can be difficult and time consuming. Once the right person is found, it’s understandable that businesses will want to do what they can to ensure that the successful candidate remains in that role. But what if the perfect person for the role is on a Working Holiday Visa that is due to expire? What can businesses do to help that Working Holiday Visa holder extend their employment in Australia?
What is the Working Holiday Visa?
The Working Holiday Visa is available for individuals from certain countries between 18 to 30 years old (inclusive) – except for Canadian, French and Irish citizens who can be 18 to 35 years old (inclusive). Many people who come to Australia to work are here on Working Holiday Visas (subclass 417), more colloquially known as the “backpacker’s visa”.
It must be applied for online while the individual is outside Australia and takes between 12 to 25 days to be approved. Once approved, the individual can travel to and from Australia as many times as they want within a 12 month period. During their time in Australia, they can study for up to four months and do short term work.
How long can a Working Holiday Visa holder work for an employer?
The Working Holiday Visa has certain visa conditions imposed on it, including condition 8547. Condition 8547 provides that the visa holder must not be employed by any one employer for more than 6 months, without the prior permission in writing of the Secretary of the Department of Home Affairs (the “Department”).
Many businesses find themselves recruiting Working Holiday Visa holders on the assumption that the Working Holiday Visa holder will be employed with the business for a short time of up to 6 months. However, if the Working Holiday Visa holder performs well in the role and is a great fit for the business, many employers find themselves wondering how they can continue to employ the Working Holiday Visa holder beyond the 6 month period.
How can I sponsor someone who is currently on a Working Holiday Visa so that they can continue their employment with us?
The most common type of visa that will enable a skilled migrant worker to work on an ongoing basis (up to 2 to 4 years) for an employer is the Temporary Skill Shortage (“TSS”) subclass 482 visa which has replaced the popular 457 visa.
What is the process involved in hiring someone on a TSS visa?
To hire or “sponsor” an individual on a TSS visa requires the lodgement of three separate applications:
- Standard business sponsorship application: This application is all about the sponsoring employer – what the business does, how profitable the business is (and hence whether they can afford to sponsor a skilled migrant worker) etc. Once approved, status as a standard business sponsor is generally valid for 5 years, which means employers only need to lodge this application once every 5 years.
- Nomination application: Once an employer is approved as a standard business sponsor, it is able to lodge a nomination application for a particular nominated occupation to be filled by a skilled migrant worker. The nomination application is all about convincing the Department that the business needs that particular nominated occupation to be filled, as attempts to fill the role with an Australian worker have been unsuccessful. This application is the one where most employers run into issues. The employer needs to demonstrate the business need for the role is genuine, and that is wasn’t created merely to help the Working Holiday Visa holder stay in Australia.
- Visa application: Once the nomination application is approved, the final application is the employee’s visa application. This application is all about the Working Holiday Visa holder’s skills and qualifications, and must convince the Department that the employee is suitably skilled to perform the nominated occupation. Generally, this requires having at least 2 years of experience in the nominated occupation, or 2 years of equivalent work experience, in addition to any qualifications, licensing or registration requirements. This is often a problem for Working Holiday Visa holders as it essentially means that the role they are performing for the business, while on the Working Holiday Visa, should be the role that they are being nominated to perform for the TSS visa. If the roles are different, for example, if they commence their 6 month employment as a Customer Service Representative, but are nominated under the TSS as a Customer Service Manager, the Department may refuse the nomination application on the basis that they are not satisfied the Customer Service Manager role is genuine, or the Department may refuse the visa application on the basis that they are not satisfied the Working Holiday Visa holder has the relevant skills and qualifications of a Customer Service Manager.
The whole process, including all three applications, can take 2-6 months or more, depending on how long the employer/employee takes to collate the required information prior to lodgement of the applications, and current Department processing times.
Given that sponsoring someone on a TSS visa is a significant investment of time and money, it is important to consider the proposed employee’s suitability for the TSS visa before any applications are lodged.
Can the Working Holiday Visa holder continue working for the business beyond the 6 month work limitation?
It is possible to have the Department lift condition 8547. This is usually done by way of lodging a form to the Department, together with supporting documents outlining why the Working Holiday Visa holder should be able to work for more than 6 months with the same employer. It is advisable to have a letter of support from the relevant employer, setting out the business case for the need to have the 6 month condition lifted. The Department is more likely to grant this request if the employer has lodged a TSS visa application for the Working Holiday Visa holder.
Given the time it can take to prepare a TSS nomination and visa application, it is sensible that the employer submits this request to the Department before the 6 month work limitation comes to an end. This is because if the Department does not process the exemption request until after the 6 month work limitation has expired, the Working Holiday Visa holder may be in breach of their Working Holiday Visa condition by working more than 6 months for one employer without the Department’s approval. Any visa breaches are taken seriously and can have an impact on whether future Australian visas will be granted.
If you need advice in relation to an employee on a visa or require assistance with the visa application process, please do not hesitate to contact our qualified Employment Lawyer, Lisa Qiu.
