Are you a Temporary Work (Skilled) visa (subclass 457) visa holder? Condition 8107 applies to you. What is Condition 8107 for you?
- Must not cease to work with their sponsoring employer
- Must work in their nominated role with their sponsoring employer for which the visa was granted*
- Cannot undertake work for another person whilst under employment for which the visa was granted*
- Must commence work within 90 days from the visa holder’s arrival in Australia where the holder was outside Australia when the visa was granted or from the date of the visa grant if the holder was in Australia
- Cessation of employment cannot be more for than 60 consecutive days
- Maintain any mandatory licence, registration or membership
* Certain occupations are exempt from these requirements, which are discussed toward the end of the article.
Condition 8107 may also be imposed on the following visas:
- Training visa (subclass 407)
- Temporary work (short stay specialist) visa (subclass 400)
- Temporary work (international relations) visa (subclass 403)
- Temporary activity visa (subclass 408)
Please check your visa grant notice to be certain. Breach of Condition 8107 may result in the cancellation of your visa, so be sure you operate within the acceptable realms of the conditions of your visa.
For visas other than the 457 visa, similar rules apply but in the context of the work or activity to be undertaken for the purpose of that visa. We will expand in detail what Condition 8107 is for the 457 visa holder.
Work for approved sponsor
The visa holder must work for their sponsoring employer in their approved nominated role. If the holder’s role in the sponsoring company has changed over time, they must be working in their latest approved nominated position.
Associated entity
The visa holder is able to work in their nominated position in an associated entity of their sponsor without being in breach of Condition 8107.
Overseas sponsor
If the visa holder is sponsored by an approved overseas standard business sponsor, the holder must work directly for the employer. Working for an associated entity of an overseas business sponsor is in this case a breach of Condition 8107.
Change of sponsor
Are you looking to change your sponsor? This is possible, but until your nomination is approved under under the new sponsor, you are still subject to Condition 8107 on your current visa; you are to continue working in your nominated role with your sponsoring employer in relation to your current visa grant. Starting work with your new employer before your nomination is approved for your new role with your new employer will result in your breaching Condition 8107.
What this means is that you can start work for your new sponsor once your nominated with that sponsor is approved. If however, your current employer requires you to fulfil a period of notice prior to termination, you are still subject to your contract agreements. Failing to do so is not a breach of Condition 8107, but you would be in failing to fulfil the requirements of industrial relations law.
Returning to your previous employer or again moving to another sponsor will again require a new nomination under that sponsor to be approved.
On the other hand, when the change of a sponsor is the result of a change to business arrangements of the sponsor, consideration has to be given to if a change in legal entity has occurred.
A change of business name or structure with no alteration to the sponsor’s Australian Business Number (ABN) will not affect the visa holder’s visa or result in a breach of Condition 8107.
A business that has been bought over and is registered under a new ABN or is absorbed into another business, resulting in a change of ABN to match the buying business, or still, retains its original ABN, is a more complicated situation. Whilst the ABN is a good measure for a change in legal entity, it is not black and white and the Department of Home Affairs should be consulted on the matter. Under these circumstances, a new nomination may need to be lodged. Condition 8107 may be considered breached if the legal entity has changed or the visa holder is no longer technically working for the sponsor in relation to their latest approved nominated.
Commencement of work
The visa holder is required to commence work within 90 days of their first arrival in Australia or from the date of their visa grant should they already be in Australia. There is no requirement for the visa holder to enter within any stipulated time frame. They must however do so before the expiry of their visa.
If there is any evidence or cause to suspect that they visa holder does not have genuine intentions to perform in their nominated position with their sponsoring employer then their visa may be liable for cancellation.
Cessation of employment
The visa holder should not cease employment for more than 60 consecutive days. If the visa holder has ceased working for their sponsoring employer, they have those 60 days to search for a new sponsor or leave Australia. The point at which employment is considered to have ceased is the date on which the employer or the visa holder has provided written notice of such.
If the visa holder is temporarily laid off due to an unfortunate downturn in business, perhaps due to seasonal swings, the visa holder may be in breach of Condition 8107 if the Department has not been notified and more than 60 days has elapsed. This may seem unfair but the Department will consider the circumstances of the business. It is therefore paramount that the Department is communicated with. With the new requirements of the provision of Tax File Numbers (TFNs) to the Department, it is not wise for visa holders to attempt to try and circumvent the law.
Leave without pay
Situations may occur where the visa holder may request for an extended period of leave during which they will not be remunerated. Examples of reasons for leave without pay (LWOP) may include study, sabbatical leave, recreational or holiday leave with no pay, sick leave without pay or maternity/paternity/carer leave. LWOP that is agreed upon between the visa holder and their sponsoring employer will not result in the breach of Condition 8107. Make sure that any such arrangements are properly documented and have gone through formal channels.
The maximum LWOP should not exceed 12 months or have an end date that is past the visa grant period. Bear in mind that the visa holder must be able to support themselves as working for another employer during this period will result in their being in breach of COndition 8107.
Unauthorised absences
Should the visa holder decide to ‘disappear’ from work, or otherwise be absent from work without prior consent, they can be considered to have ceased employment, should the employer have attempted to give notice to the visa holder and the date of which their employment is to cessate has passed.
Should the visa holder not find a new sponsor within 60 days of this date, the visa holder is in breach of Condition 8107.
Working outside Australia
If the visa holder has not ceased employment and have reasonable grounds to be outside of Australia, then the visa holder cannot be considered to be in breach of Condition 8107. The Department recognises that the visa holder’s job may entail a fly in fly out arrangement, visitation of related businesses outside Australia or projects that are occurring outside Australia.
It is still important that the visa holder is working within their prescribed and approved nominated role for their sponsoring employer. Work that is performed that falls outside their approved nominated position’s duties or is inconsistent with any registration, license or membership will be subject to scrutiny by the Department.
Mandatory licence, registration or membership
The visa holder is required to maintain any mandatory licence, registration or membership for them to work in their nominated occupation, in the location for which their role is situated. They must comply with any conditions and requirements for their licence, registration or membership. Further to this the visa holder should not engage in any work that is inconsistent with maintaining their licence, registration or membership
Other than medical practitioners, 457 visa holders may be granted their visa prior to their attaining of relevant licenses, registrations or memberships. If the visa holder is outside Australia at the time of their visa grant, they must obtain their license, registration or membership within 90 days of arriving in Australia. For those in Australia at the time of their visa grant, they must hold their licence, registration or membership within 90 days of their visa grant date.
Exemptions
There are exemptions available for certain occupations in the above rules. The occupations that are eligible for exemption are listed in this legislative instrument.
Find: Legislative instrument
The occupations in the legislative instrument above are not required to fulfil the obligation of undertaking work only for their sponsoring employer. They are able to be engaged as an independent contractor and may work for multiple employers, simultaneously or consecutively. Regardless, the visa holder is still required to work in their most recently approved nominated occupation.
The visa holder should still keep their sponsoring employer updated on their work activity, and in written word. Documental evidence should detail the following:
- Who the visa holder is currently working for who is not the sponsoring employer
- Hours that the visa holder is undertaking
- Payments that the visa holder is receiving from their other employer(s)
Unpaid/voluntary work
Work that is undertaken voluntarily is not considered to be a breach of Condition 8107. As such there is no need for such work to fall within the approved nominated position or be for their sponsoring employers
Work performed outside Australia not for sponsor
Work that is engaged in outside of Australia does not impact on Condition 8107. Condition 8107 applies specifically to work that is undertaken whilst the visa holder is in Australia. Overseas work and/or activity should not be related to any business activity in Australia.
However if the work that the visa holder is engaged in is significant, there may be cause for the Department to suspect that the visa holder has no genuine intent to fulfil their nominated role in Australia. In such situations the Department will investigate and if it is discovered that the visa holder is abusing the skilled visa programme, their visa may be subject to cancellation.
Are you unsure where you stand? Has your sponsoring employer’s business structure changed or are you looking to move to a new sponsor? Are you in an occupation listed in the exemptions and looking to understand the parameters within which you can work in Australia? Don’t risk your visa, speak to experienced agents to be certain.
