Connecticut, US
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| Alana Begg | Samantha Panchal

Business Immigration Compliance for Working Holiday Makers in Australia

Established under cultural exchange agreements, both the Work and Holiday Visa (Subclass 462) and Working Holiday Visa (Subclass 417) allow young people visiting Australia to remain in the country for up to twelve months from the date of first entry, granting them the right to work for any employer for a maximum period of six months.

To be eligible for a Subclass 462 or Subclass 417 Visa, the individual must hold a passport from an eligible country and be at least 18 years old, but not yet turned 31.

The six month work limitation applies to any employer and to any form of work undertaken. This supports the overarching intention of the visas to act as a means of facilitating an extended holiday in Australia. The six months stipulation refers to six calendar months and includes any periods of paid or unpaid leave.

It is important to note that an employer is considered to be the business that the visa holder is directly working for and is referred to as being the end user. This prevents visa holders from staying with an end user beyond six months by using different employment arrangements, such as agencies or sub-contracting agreements.

Second Working Holiday (Subclass 417) Visa

A Subclass 417 Visa holder is able to apply for a Second Subclass 417 Visa which allows the individual to remain in Australia for an additional twelve months if, during the initial validity period, they have worked for at least three months in a regional area in an approved industry.

Additionally, if the individual has worked for an employer for six months, they are able to continue to work with that same employer for up to a further six months on their Second Subclass 417 Visa.

Extending the six month work limitation

It is possible to apply for an extension of the six month work limitation in certain circumstances.

Generally, this follows the lodgement of a new Australian visa application, such as a Subclass 457 Visa. In this instance, once the application has been submitted to the Immigration Department, a separate request is lodged for permission to continue working for the individual’s sponsor up until the Subclass 457 Visa application is finalised.

It is recommended that extension requests are lodged with the Immigration Department at least two weeks prior to the six month work limitation expiring.

Initiatives to support Northern Australia

Second Work and Holiday Visa (Subclass 462)

The option for a Subclass 417 Visa holder to apply for a Second Subclass 417 Visa is not currently extended to holders of a Subclass 462 Visa.

However, a new initiative for these visa holders to become eligible for a Second Subclass 462 Visa is underway and is designed for those who undertake three months’ work in the agriculture, tourism and hospitality industries within Northern Australia. The Northern Territory, parts of Western Australia and Queensland north of the Tropic of Capricorn are all classified as Northern Australia.

This initiative is expected to come into effect towards the end of 2015.

Extended work permits in Northern Australia

A further initiative has been announced in the form of extended work permits for Subclass 462 Visa holders working in Northern Australia. A single employment twelve month work permit will be available for roles in the agriculture, forestry and fishing, tourism and hospitality, mining and construction, and aged and disability care industries.

The proposed twelve month work permit will be accepted in the Northern Territory, parts of Western Australia and Queensland north of the Tropic of Capricorn.

This initiative is also expected to come into effect towards the end of 2015. When in operation, holders of Subclass 462 Work and Holiday Visas will need to apply for an employment extension using the Immigration Department's existing extension request processes.

Important considerations for businesses

The Australian Government is continuing to show a strong focus on compliance within its immigration programme.

The Australian Border Force was introduced on 1 July 2015, combining immigration, customs and border protection functions. Taskforce Cadena was also established in June 2015 to investigate illegal practices involving foreign workers and is a further indication of the government’s current visa enforcement agenda.

Penalties under the employer sanction legislation for knowingly or recklessly using foreign workers, including Working Holiday Makers, are severe. Non-fault civil penalties for allowing a person to work in breach of their visa conditions can be as high as AUD 15,300 for an individual and AUD 76,500 for a corporation. Penalties for criminal offences are even higher.

Employers wishing to remain compliant with visa regulations would do well to develop strategies to monitor their workforce in order to avoid any liability. Fragomen can assist clients to do so in a number of ways, including conducting compliance audits of temporary visa populations and assisting with the development and implementation of compliance processes and procedures.

MARN 0964710 / MARN 1068917