The Complete Guide to Condition 8107
It’s a normal Thursday afternoon. You’re sitting at your desk when your manager summons you to their office. You nervously walk towards their office, racking your brain and trying to think if you’ve done anything wrong!
Your manager then says – Congratulations! We would like to offer you a promotion as you’ve been doing such a great job lately. The new role is quite different to what you’re doing now so it will be a new challenge for you.”
In your excitement you verbally accept the promotion on the spot. Your mind is racing thinking about your shiny new title, the number of reports you’ll have and the pay increase you’ll receive.
Flash forward and you’re now applying for Australian permanent residence under the Employer Nomination Scheme on the basis that you’ve been working for your employer for two years on a 457 visa. But then you get the bad news – your application has been rejected!
Turns out when you accepted that promotion, a new 457 nomination was required before you could commence in that role.
What is Condition 8107?
Primary 457 visas are subject to a legal condition – condition 8107 (work limitation). This condition does not apply to secondary 457 visa holders who have full work and study rights for the duration of the visa.
Primary 457 visa holders sponsored under a standard business sponsorship must generally:
- Commence work within 90 days of arrival in Australia (if outside Australia when the visa was granted);
- Commence work within 90 days of visa grant (if in Australia when the visa was granted);
- Work only in the occupation listed in the most recently approved nomination (unless the occupation is one of the very few which are exempt);
- Work only in a position within the business of the sponsor or an associated entity of the sponsor (if the sponsor is a standard business sponsor lawfully operating a business in Australia). ‘Associated entity’ for this purpose has the same meaning as in s50AAA of the Corporations Act;
- Work only in a position within the business of the sponsor (if the sponsor is a standard business sponsor operating a business outside Australia – ie. an overseas business sponsor); and
- Not cease employment for more than 90 consecutive days.
Furthermore, condition 8107 states that if you are required to hold a mandatory licence, registration or membership to perform your nominated occupation in your location, you must generally:
- Hold the licence, registration or membership while performing the occupation;
- Hold the licence, registration or membership within 90 days of arrival in Australia (if outside Australia when the visa was granted);
- Hold the licence, registration or membership within 90 days of visa grant (if in Australia when the visa was granted);
- Notify the Department if an application for a licence, registration or membership is refused;
- Comply with each condition or requirement to which the licence, registration or membership is subject to;
- Not engage in work that is inconsistent with the licence, registration or membership; and
- Notify the Department if the licence, registration or membership ceases to be in force or is revoked or cancelled.
Common Scenarios and how Condition 8107 Applies
Leave Without Pay
Many Australian employers allow their employees access to leave without pay (LWOP). Examples of LWOP arrangements include:
- Study or sabbatical leave
- Recreational or holiday leave
- Sick leave
- Paternity leave
- Personal leave
Current departmental policy confirms that 457 visa holders on approved unpaid leave are not considered to be in breach of 8107 solely on the basis of this unpaid leave. This is because the 457 visa holder may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).
In these situations, it is expected that:
- There would be a formal application for unpaid leave that has been formally approved;
- The intended period of LWOP should not exceed 12 months or the remaining visa period (whichever is shorter); and
- The 457 visa holder must be able to support themselves for that period of leave without seeking work from another employer (which would be a breach of condition 8107).
Sponsors should note that the sponsorship obligations will remain in force while the 457 visa holder is on unpaid leave.
Periods spent outside Australia
457 visa holders who spend periods of time outside Australia are not considered to have ceased employment solely because they are or have been absent from Australia. However, if a 457 visa holder spends significant periods of time outside Australia, the Department may question the continued need for the 457 visa.
Working outside Australia
The Department accepts that there may be legitimate circumstances in which a 457 visa holder is regularly absent from Australia such as:
- Fly in/fly out arrangements which are common in some industries and can be a legitimate reason why a 457 visa holder is regularly absent from Australia; or
- The 457 visa holder may, as part of their duties, be responsible for managing work on a project outside Australia (although the position is based in Australia with an Australian company)
Provided the 457 visa holder has not ceased employment and there are reasonable grounds for the visa holder to be regularly absent from Australia, they will not be considered to be in breach of condition 8107.
Cessation of employment
457 visa holders who cease working with their sponsor for more than 90 days would be in breach of condition 8107. 457 visa holders would need to depart Australia or find a new sponsor to lodge a new nomination within 90 days.
In the latter scenario, the 457 visa holder would need to wait until the new nomination has been finalised by the Department before they could commence work with the new sponsor.
What if I don’t comply with Condition 8107?
If you fail, as a 457 visa holder or sponsor, to comply with condition 8107, potential implications include:
- Breaching visa conditions may impact future visa applications, as many visa applications have a requirement that there has been substantial compliance with previous visa conditions;
- Impacting the individual’s eligibility to apply for permanent residence;
- Cancellation of the 457 visa;
- A breach of the Employer Sanctions legislation for the sponsor which carries significant fines and penalties; or
- Further monitoring of the sponsor by the Department.
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