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Immigration

Condition 8547 and seeking permission to work with an employer for more than 6 months

By 17 October, 2023No Comments7 min read

condition 8547

Australia’s Working Holiday Maker (WHM) program consists of the Working Holiday (subclass 417) and the Work and Holiday (subclass 462) visas. These visas permit young people with certain passports to work and holiday in Australia. Given the dual purpose, the permitted work is generally limited by condition 8547. That is, “the [visa] holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.”

This article details how to obtain permission to work for longer than six months with one employer.

When are WHMs taken to have permission to work longer than six months with one employer without a request?

In certain cases, WHMs are taken to have permission to work longer than six months with one employer without a request. This includes work in:

Certain high demand industries in Northern Australia

This measure was introduced in relation to the Australian Government’s 2015 White Paper on Developing Northern Australia and broadly refers to work in (see here):
  1. Aged & Disability Care;
  2. Agriculture;
  3. Construction;
  4. Mining; and
  5. Tourism & Hospitality.

Different locations, where work in any one location does not exceed six months

 For the purpose of condition 8547, the term “employer” means the business or organisation for which the visa holder is directly working – that is, the end user. This means that a visa holder may be employed by the same employment agency, labour hire company or contractor for more than six months, but may not provide services to the same end user for more than six months.

However, a visa holder may be employed by the same end user for a combined total of more than six months, provided the work is undertaken in different locations and work in any one location does not exceed six months. For example, if a person is moved from the Sydney office of an end user to the Melbourne office of the same end user, then the six month work limitation is not breached.

Plant and cultivation work anywhere in Australia

 Plant and animal cultivation includes most agricultural work, specifically:
  1. the harvesting and/or packing of fruit and vegetable crops
  2. pruning and trimming vines and trees
  3. general maintenance crop work
  4. cultivating or propagating plants, fungi or their products or parts
  5. immediate processing of plant products
  6. maintaining animals for the purpose of selling them or their bodily produce
  7. immediate processing of animal products including shearing, butchery, packing and tanning
  8. manufacturing dairy produce from raw material.

Requests for permission to work longer than six months with one employer

In other cases, requests to extend the employment period beyond six months may be approved in limited circumstances, for example where the visa holder:

Is an Au Pair

Department policy is that if a visa holder can demonstrate that they have worked as an au pair for six months, an employment extension request should be approved for up to six additional months (a total of 12 months’ employment). A letter of support from the family employing the au pair would generally be sufficient evidence. Although the exact nature of the work undertaken by an au pair may vary from case to case, the au pair’s primary responsibility should be the care of the family’s children, rather than any domestic work. The youngest child being cared for should be no older than 12 years old (that is, primary school age or younger).

Has lodged an application in Australia for another visa that would allow ongoing full-time employment

Department policy is that permission may be granted for an extension of the six month limitation if the visa holder has applied, as a primary or secondary applicant, for a visa that would allow them to continue full‑time work with the same employer. This includes for example, the Temporary Skill Shortage (Subclass 482) (TSS) visa. However, policy is clear that applications for a visa such as a Student visa that would allow the visa holder to have restricted / limited work with the same employer do not satisfy the requirement.

Has other exceptional circumstances

There is also a broader basis for permission in exceptional circumstances. Department policy is that “exceptional circumstances must relate to an Australian permanent resident, citizen or business and are to be extraordinary and unforeseeable.” Examples of exceptional circumstances provided by the Department include where:
  1. the visa holder’s work is critical to a project that takes longer than expected (for example, a lawyer working on an extended trial);
  2. the visa holder is undertaking disaster recovery work after a major disaster (for example, helping to rebuild after a flood); or
  3. the workplace has been affected by a major disaster and the visa holder was physically unable to go to work (for example, returning to a farm to help with the harvest following flooding).

On the other hand, examples of where exceptional circumstances do not exist include where a visa holder:

  1. is well qualified or there are labour shortages – for example:
  2. is a teacher or hospitality worker in circumstances where the employer has been having difficulty finding staff; or
  3. is a driver, in circumstances where the company does not have sufficient staff to make its deliveries.
  4. is working on a project that has run overtime due to a declared major disaster or other disaster, but the workplace has remained open and the work itself is not disaster recovery work
  5. is working casually or on a part time basis
  6. needs to gain work experience to qualify for a further visa, or intends to apply for another visa
  7. cannot successfully apply for another kind of visa
  8. has applied for a visa that requires them to be outside Australia at the time of grant.

How to make a request for permission to work longer than six months with one employer

Requests for permission to work longer than six months with one employer should:

  1. be made at least two weeks before the expiry of the six‑month work period;
  2. be in writing, preferably using Form 1445 or by emailing the Department ([email protected]);
  3. specify when they commenced working with their employer and when the six‑month period will end;
  4. give full details of the relevant grounds for which they are seeking permission to work longer than six months;
  5. specify how long they wish to continue working for their employer; and
  6. provide supporting documentation from the employer, for example, a one-page letter on company letterhead outlining the exceptional circumstances.

Any questions?

The WHM program provides opportunities for both skilled young people and employers looking to fill short time employment opportunities. A nuanced understanding of the program and its requirements can help make it valuable for both parties – Hannan Tew can assist with this. If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.

 

Mihan Hannan

Author Mihan Hannan

Formerly a Senior Associate in one of Australia’s most reputable immigration litigation and review practices, Mihan is solutions focused and well versed in all aspects of Australian immigration law. Mihan also has a subscription addiction, being obsessed with tools to improve the firms immigration work flow.

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