If you are on a Student 500 visa, Condition 8105 applies to you. Condition 8105 demands that student visa holders work no more than 40 hours per fortnight while their course is in session. This is what most students know. But here are some tidbits that you may not know:
- A student visa holder is not permitted to work until their course has commenced and is in session
- A student visa holder may work unlimited hours when their course is not in session
- A student visa holder who has commenced a masters by research or a doctorate course may work unlimited hours after commencing their postgraduate research course
Most important to know is how these hours are counted as we will cover below. It is very easy to misunderstand Condition 8105 and misunderstanding may result in your unintentionally breaching Condition 8105 or working less hours than you are able to. Don’t fall into it’s trap!
It may seem straightforward, but for the sake of regulation, work is defined to be an activity that results in remuneration. An activity can happen without renumeration, or vice versa where remuneration is received without the activity having taken place, in which case the visa holder would not be considered to have worked.A student visa holder can be considered to have engaged in work if they:
- Have attended a place of work for a period on a roster or timesheet. Time on unpaid breaks is not considered
- Have been “clocked on” to an electronic system that records a work activity
- Have received remuneration for work and a payslip is provided to the visa holder (unless documentary evidence is provided that they were not working during this time)
It is important that we be specific, as this changes how the hours are counted. As you will see in some examples to follow, a student who is on a meal break that is unpaid or has paid time but some of that time was on medical leave, will not have those hours count towards their work limit. Examples:
- A person who undertakes a shift at a restaurant as part of a roster is engaged in work, but is not considered to be working during their rostered unpaid meal break
- A taxi driver who has signed in and is ready to receive passengers is considered to be working, until at such time as they sign out for a break or when their shift has ended
- A person has a payslip indicating they were paid for 25 hours work in one fortnight, but can provide a medical certificate that they were at home unwell for 15 of these 25 hours, meaning that they only worked for 10 of those hours
Student visa holders may undertake volunteer work outside of the 40 hour work limitation per fortnight if:
- Their main purpose is to study in Australia and any voluntary work is secondary, and
- The work involved would not otherwise be undertaken by an Australian citizen, permanent resident or eligible New Zealand citizen, and
- The work is genuinely voluntary for a non-profit organisation and that no remuneration, in cash or otherwise, is received by the visa holder for their work
Unpaid work that does not conform to the description of volunteer work will be considered as work and count towards the work limitation.
Calculating work hours
Technically, a fortnight is defined as the period of 14 days commencing on a Monday. Therefore the end of any fortnight would be at the end of the second following Sunday. The 40 hours a fortnight:
- Relates to each fortnight during which the course of study or training is in session
- Cannot be averaged out over the duration of the course
Here is an example for clarity. A student visa holder works the following hours over a four week period after the course has commenced:
Week 1: 15 hours work
Week 2: 25 hours work
Week 3: 25 hours work
Week 4: 10 hours work
Here’s the kicker; the student visa holder cannot have worked over 40 hours in any fortnight. It is not counted cyclically. The student visa holder would not have breached their work conditions in the fortnight of weeks 1 and 2, where they have worked 40 hours worked or in the fortnight of weeks 3 and 4, where they have worked 35 hours. Unfortunately, the visa holder has breached their work conditions in the fortnight of weeks 2 and 3 where they have worked 50 hours. It can be confusing and would be easiest if a student visa holder were to engage in a flat 20 hours of work a week or less, but if not, this is very important to know.
Work that is a component of the course
Work that is undertaken as s a registered component of the student’s course of study or training for the award to be obtained is not taken to count towards the 40 hours of work per fortnight limitation.
Is a course “in session”?
A course is considered to be ‘in session’:
- For the duration of the advertised semesters, including the periods when exams are being held
- If the studies have been completed but the Certification of Enrolment (CoE )is still in effect. The exception is masters by research or PhD students who have submitted their thesis. In such a case, the course is considered to be out of session once the student has submitted their thesis for marking, regardless of whether the CoE is still in effect. This enables them to work unlimited hours while they wait for their thesis to be marked
- If a student is undertaking another course during a break from their main course and the points will be credited towards their main course
A educational provider may allow for a student visa holder to defer or suspend their enrolment on the basis of compassionate or compelling circumstances. This would require an extension of the CoE for compassionate or compelling reasons (circumstances beyond the control of the student and which have an impact on the students’ course progress or wellbeing). In this situation the student visa holder would be considered to be “out-of-session” and there is no restriction on hours of work permitted.
Students who complete their course as scheduled and are out of session have unlimited authority to work whilst they still hold a valid student visa.
Students whose enrolment has been cancelled due to the default of their education provider also will have the ability to work without limitation until they secure alternative enrolment and commence the new course.
Working between courses and student visas
Have you been granted a further student visa or are waiting for the grant of a further student visa? Under certain circumstances, a student will be allowed to work between courses and visas:
- Students who have been granted or have applied for a further student visa (including those on a bridging visa that was granted based on a student visa application) that is for the purpose of enabling them to complete a course for which an initial visa was granted, such as where an initial CoE is extended, may continue to work
- Students on a visa associated with a package of courses may continue working between courses
Students who have completed a course of study and have been granted or have applied for a student visa (including those on a bridging visa that was granted based on a student visa application) for the purpose of undertaking a different course of study, are required to stop working from the grant date of the new visa and cannot work until the new course commences.
Are you confused about your work rights? It can be confusing especially if you are taking multiple courses or for one reason or another are embarking on a further student visa to complete your course. Need advice? Australian Immigration Law Services can help. Our specialist team is experienced in getting our clients from student visas all the way to permanent residency and ultimately citizenship. Call +61 2 8054 2537 or book online.