Condition 8107

 
 

8107     (1)  …

             (2)  …

             (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

                     (a)  the holder:

                              (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and

                             (ii)  unless the circumstances in subclause (3A) apply:

                                        (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

                                        (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

                                        (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor; and

                   (aa)  the holder must commence that work within 90 days after the holder’s arrival in Australia; and

                     (b)  if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days; and

                     (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:

                              (i)  hold the licence, registration or membership; and

                             (ii)  comply with each condition or requirement to which the licence, registration or membership is subject.

          (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

                     (a)  if the nomination was made before 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

                   (aa)  if the nomination is made on or after 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

                     (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

          (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

                     (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and

                     (b)  if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days.

 

The effect of clause 3 above is that a 457 visa holder can change employer as long as the new employer has sponsored and nominated the visa holder.

Of course an employee cannot work for a non-sponsored employer.

 

 

EMPLOYER SANCTIONS ACT

 

This is now part of the Migration Act and has relevance for condition 8107.

245AC  Allowing a lawful non‑citizen to work in breach of a work‑related condition

             (1)  A person (the first person) contravenes this subsection if:

                     (a)  the first person allows, or continues to allow, another person (the worker) to work; and

                     (b)  the worker is a lawful non‑citizen; and

                     (c)  the worker holds a visa that is subject to a work‑related condition; and

                     (d)  the worker is in breach of the work‑related condition solely because of doing the work referred to in paragraph (a).

             (2)  Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work‑related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:

                     (a)  using a computer system prescribed by the regulations to verify that matter;

                     (b)  doing any one or more things prescribed by the regulations.

Offence

             (3)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty: 2 years imprisonment.

Note:     A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (4)  For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.

Civil penalty provision

  • A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:         90 penalty units.

Note:     It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

  • A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
Barbara DavidsonCondition 8107