Visa Conditions: 457 & Temporary Skill Shortage (Subclass 482) visa

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It’s been just over a year since the Temporary Skill Shortage (Subclass 482) visa was introduced, replacing the controversial Temporary Work (Skilled) (Subclass 457) visa. As both of these visas are employer sponsored, they do have associated work limitations. However, what some visa holders and employers may not realise is that the work limitation varies according to whether you hold a 457 visa or a 482 visa. This blog post will explore the work limitation attached to each visa and how they differ.

 

What is condition 8107?

Condition 8107 applies to 457 visas and states, amongst other things, that the visa holder must generally:

  • Work only in the occupation listed in the most recently approved nomination application;
  • Work only in a position in the sponsor’s business or an associated entity (as defined by s50AAA of the Corporations Act 2001 (Cth)) if the sponsorship was obtained on the basis of lawfully operating a business in Australia (unless exempt);
  • Work only in a position in the sponsor’s business if the sponsorship was obtained on the basis of lawfully operating a business outside of Australia (ie. an overseas business sponsor);  
  • Commence work within 90 days of arriving in Australia (if outside Australia) or within 90 days after the visa was granted (if in Australia); and
  • Not cease employment for more than 60 days (if the 457 visa was granted on or after 19 November 2016).

What is condition 8607?

Condition 8607 applies to 482 visas and states, amongst other things, that the visa holder must generally:

  • Work only in the occupation listed in the most recently approved visa application;
  • Work only in a position in the sponsor’s business or an associated entity (as defined by s50AAA of the Corporations Act 2001 (Cth)) if the sponsorship was obtained on the basis of lawfully operating a business in Australia (unless exempt);
  • Work only in a position in the sponsor’s business if the sponsorship was obtained on the basis of lawfully operating a business outside of Australia (ie. an overseas business sponsor);  
  • Commence work within 90 days of arriving in Australia (if outside Australia) or within 90 days after the visa was granted (if in Australia); and
  • Not cease employment for more than 60 days.

On the face of it, the work limitations seem to be very similar. However, it is critical to note there are some key differences outlined in Departmental policy. Please see below where we outline common scenarios that 457 and 482 visa holders may encounter and discuss how the relevant work condition applies to each scenario.

Situation 457 visa – Condition 8107 482 visa – Condition 8607
Changing sponsors A 457 visa holder can generally only work for their sponsoring employer (unless exempt). However, they can change sponsors by way of a new nomination application (assuming the new employer is an approved sponsor). The visa holder would need to wait until the new nomination has been approved before commencing work with the new sponsor, otherwise they will be in breach of condition 8107.

 

The 457 visa holder may, however, be required to continue working for their previous sponsor (after a new nomination has been approved) for the purpose of serving their notice period. This would not be considered a breach of condition 8107 where the visa holder is seeking to act in accordance with Industrial Relations law.

 

 

 

482 visa holders can change sponsors by way of a new nomination application (assuming the new employer is an approved sponsor).They are not required to submit a new visa application also, unlike changing occupations (please see below). However, the visa holder would need to wait until the new nomination has been approved before commencing work with the new sponsor, otherwise they will be in breach of condition 8607 (unless exempt).

 

The 482 visa holder may, however, be required to continue working for their previous sponsor (after a new nomination has been approved) for the purpose of serving their notice period. This would not be considered a breach of condition 8607 where the visa holder is seeking to act in accordance with Industrial Relations law.

Changing occupations A 457 visa holder can change nominated occupation by way of a new nomination application. The new nomination application must be finalised first before commencing the new occupation. 482 visa holders must submit both a new nomination and visa application if they wish to change nominated occupations.

 

The new nomination and visa applications must be finalised first before commencing the new occupation.

Leave without pay (LWOP) 457 visa holders who are on approved unpaid leave are not considered to be in breach of condition 8107 solely on the basis of that unpaid leave because they may still be considered as being employed by the sponsor (although not working or receiving a salary).

 

However, under current departmental policy it is expected that:  

  • There is a formal application for LWOP that has been formally approved by the employer; and
  • The intended period of LWOP should generally not exceed 12 months or the remaining visa period (whichever is shorter).

 

Please note:

  • A 457 visa holder’s visa may be subject to cancellation if the Department of Home Affairs is satisfied that the visa holder has ceased to have a genuine intention to perform that occupation
  • Sponsors should be aware that their sponsorship obligations remain in force while a 457 visa holder is on unpaid leave
482 visa holders who are on approved unpaid leave are not considered to be in breach of condition 8607 solely on the basis of that unpaid leave because they may still be considered as being employed by the sponsor (although not working or receiving a salary).

 

However, under current departmental policy this period should generally not exceed 3 months unless:

  • The sponsor is obliged to provide the leave under Australian workplace laws (eg. in connection with maternity leave); or
  • Exceptional circumstances apply – these exceptional circumstances would need to be raised with the Department of Home Affairs beforehand as the Department would need to discuss the matter with Australian Border Force as the situation may have implications in regards the employer’s ability to comply with their obligations

 

Please note:

  • A 482 visa holder’s visa may be subject to cancellation if the Department of Home Affairs is satisfied that the visa holder has ceased to have a genuine intention to perform that occupation
  • Sponsors should be aware that their sponsorship obligations remain in force while a 482 visa holder is on unpaid leave

 

Temporary lay-off If a 457 visa holder is temporarily laid off due to seasonal downturn in their industry, they may be considered to have ceased employment and may therefore be in breach of condition 8107.

To avoid premature visa cancellation, 457 visa holders temporarily laid off due to seasonal downturn and their employers should contact the Department to discuss the circumstances of the case.

This situation is treated the same as under the 457 visa.
Periods spent outside of Australia 457 visas allow the holder multiple entries to Australia. 457 visa holders who spend periods outside Australia are not considered to have ceased employment solely on that basis.

Provided the visa holder has not ceased employment and there are reasonable grounds for the visa holder to be regularly absent from Australia (eg. directors attending board meetings), the visa holder will not be considered to be in breach of 8107.

Under current departmental policy, reasonable grounds include:  

  • Fly in/fly out arrangements which are common in some industries; or
  • The 457 visa holder, as part of their nominated role, may be responsible for managing work on a project outside Australia.
This situation is treated the same as under the 457 visa.
Secondary employment A 457 visa holder must have a genuine intention to perform their nominated occupation in Australia. This includes not undertaking additional work or any activity that is inconsistent with their nominated occupation. 

As such, a primary 457 visa holder may not undertake secondary employment unless they are exempt or the work is: 

  • Undertaken for the sponsor;
  • In the nominated occupation;
  • Consistent with the position they were approved to fill; and
  • Incidental to their principal employment.
This situation is treated the same as under the 457 visa.
Part time work Under the 457 visa scheme, nominated positions can be part time provided certain requirements are met (eg. market rate requirement, continuing to receive the same earnings as approved in the most recent nomination at a pro rata rate).

457 visa holders should be aware that reducing their work hours may impact their eligibility for permanent residence.

The nominated position must generally be full time. Under current departmental policy, positions should generally be considered full time where employees work:

  • 38 hours per week; or
  • Between 32 and 45 hours and the period is specified under an industry award or agreement, and is consistent with the National Employment Standards.

However, part time arrangements can be approved in certain situations (where reasonable and consistent with the Australian workplace relations framework).  These situations may include:

  • Fractional appointments of overseas academics to Australian universities;
  • Medical practitioners (on the Medium and Long Term Skill Shortage List);
  • Non-executive directors and senior specialised managers (ie. highly paid board members who are required to regularly attend board meetings in Australia for short periods); or
  • Existing TSS visa holders who are temporarily reducing their hours to return to work following parental leave.

TSS visa holders should be aware that reducing their work hours may impact their eligibility for permanent residence.

Voluntary unpaid work Under current departmental policy, voluntary unpaid work is not considered to be a breach of condition 8107, provided it does not impact the ability of the 457 visa holder to work in their nominated position on a full-time basis. However, the visa holder is expected to get the agreement of their sponsor.

This is because voluntary work would not meet the definition of ‘work’ for immigration purposes (ie.  an activity that in Australia normally attracts remuneration).

This situation is treated the same as under the 457 visa.

 

Why is it important to comply with your visa conditions?

As a visa holder, non compliance with your visa conditions can result in visa cancellation or when applying for a new visa, any previous failure to comply with visa conditions may be considered as part of the decision making process.

It is also important to note that the work limitation is not the only condition that applies to a 457/TSS visa, other conditions such as 8501 (must maintain adequate arrangements for health insurance) also apply.

 

About the Author

Maria is a Registered Migration Agent (MARN:1067049) and the Manager of the Immigration team at SIRVA ImmigrationIf you are unsure about what conditions apply to your visa or what they mean, the team at SIRVA can assist you, please feel free to contact us.

SIRVA Inc. is a leading worldwide provider of corporate relocation services and moving solutions, providing more than 300,000 relocations per year to companies, government employees, and individual consumers. SIRVA operates in more than 40 countries with approximately 6,000 employees and an extensive network of agents and other service providers in over 160 countries.

Disclaimer: The information provided herein is of a general nature only and does not constitute legal or other professional advice. Immigration requirements change on a regular basis. For more detailed, up to date and case specific information or advice, please contact SIRVA Relocation. This information is current as of September 2018 and is subject to change in the future.

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