New short term work visa

On 13 March 2013, the Government announced the introduction of the new temporary work (short stay activity) visa (subclass 400) which came into effect on 23 March. The visa is specifically designed to permit short term work, and will replace the subclass 456 visa and its electronic equivalents, the Electronic Travel Authority (ETA) and evisitor.

02 Apr 2013

The new Short Stay Activity visa allows entry to Australia if the work is short term, will not be ongoing and:

is highly specialised (typically managerial, professional or technical/trade occupations); or
fulfils compelling circumstances relating to Australia’s interests (for example, a natural disaster); or
represents an invitation by an organisation lawfully operating in Australia to attend and participate in an event, such as a conference or cultural event; and where their presence in Australia will not impact on employment, training opportunities or work conditions of Australians.

Policy notes that the 400 visa is not appropriate for persons intending to undertake training as their main activity (unless exceptional circumstances exist) but may be acceptable where incidental to the main purpose of their stay such as a highly specialised worker who will do some training run internally by their employer in Australia.

Further, policy suggests that for the work to be “highly specialised,” it must involve highly specialised skills, knowledge or experience that can assist Australian businesses and cannot be reasonably found in the local labour market. Policy notes that the visa is not intended for workers seeking to perform a role that is “generic” in their profession. Lastly, the applicant will need to show that they have personal attributes, an employment background, or both, that are relevant to, and consistent with, the proposed activity or work.

Based on these criteria and the relevant new application form, it would appear that the application must be well supported by information and documentation surrounding the work to be undertaken in Australia including its location, the duration of work, reason the applicant is required, and details of the business that will be paying the employee. The application must be supported by a job description, letter or offer or contract and details of the person’s suitability for the role. There is also scope for case officers to assess evidence of the highly skilled specialised nature of the employment, and evidence or assessments regarding the skills not being able to be found locally.

The visa applicant must remain outside Australia until the decision is made on the visa, and it will not be possible to obtain a 400 visa while in Australia.

We understand that 400 visas will typically be granted for single or multiple entries of 6 weeks, however, the visa does allow for a period of 3 months, and will be subject to a condition that the holder remains employed, will not undertake work in a position or engage in an activity that was not identified in the visa application. Unlike the predecessor 456 visa, family members can be included in the visa, but they will be subject to a ‘no work’ condition.

As part of the reforms, the government will also restructure the visitor visa program, and introduce four new visas; Subclass 600 (Visitor) visa, Subclass 601 (Electronic Travel Authority) visa, Subclass 602 Medical Treatment visa and Subclass 651 eVisitor visa.

The Subclass 600, 601 and 651 visas allow visitor visa holders to engage in narrowly defined ‘business activities’. The activities of business visitors are restricted to:

making a general business or employment inquiry;
investigating, negotiating, entering into or reviewing a business contract;
an activity carried out as part of an official government-to-government visit; and
participation in a conference, trade fair or seminar in Australia unless the person is being paid by an organisation for participation;

but excludes:

an activity that is, or includes work for, or supplying services to, an organisation or other person based in Australia; and
an activity that is, or includes, the sale of goods or services directly to the general public.

Any activity that would be normally classified as work, regardless of whether it is remunerated, will be prohibited on the visitor visa. Business visitors from low risk countries will be able to access the electronic travel authority or eVisitor. As before, higher risk applicants will need to submit a paper application.

Impact of the reforms

The introduction of the 400 visa is welcomed to the extent that it creates a clearly defined mechanism for employees that are required in Australia for short term work. Businesses previously relied on the 456 visa or its electronic equivalents, the business ETA and eVisitor, for this purpose. The appropriate use of these visas for work purposes was shrouded in policy that was sometimes unclear and at worst, at odds with the legal requirements.

While there is no formal sponsorship requirement for the 400 visa, it is evident that the employing and host entities, job description and proposed activities, and the credentials of the visa applicant will all be subject to scrutiny. Businesses that, in the past, have relied on electronic business visa holders to fill short term vacancies will notice a significant increase in the work and time associated with obtaining permission for its employees to travel to Australia.

As the visa holder is restricted to only undertake activities declared in the application, the host business will need to monitor their activities because working in breach of the work limitation exposes both the business and the visa holder to compliance action. More generally, the introduction of the 400 visa may require a revision of mobility policies that were based on the old visa categories.

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