As a reminder, the current concessions for Working Holiday Makers (WHM) that allow them to work for one employer (with the same end user or Australian Business Number) for more than six months will end on 1 January 2024. See our alert of 14 June 2023.
This means that from that 1 January 2024, WHMs will only be able to work for one employer for up to six months unless they receive written permission from the Department to extend this time. Significantly, this will end the previous flexibility in policy to automatically extend this period where the WHM remains with the same employer but at a different location. This is a major departure from previous policy that has been in place since September 2016. Businesses need to be vigilant they do not continue the practice of moving locations in order to extend work rights beyond the 6 months.
Examples:
- The WHM started with the employer on 1 March 2023, but has continued to remain with the employer under the COVID concessions. The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.
- The WHM started with the employer on 1 August 2023. The employee will need to cease work on 1 February 2024 unless they have received permission in writing to extend the employment with the employer.
- The WHM arrived in Australia in June 2023 and started with the employer on 1 July 2023 and is currently awaiting the outcome of a TSS visa. The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.
The changes mean that all employers must review their current WHM population and either seek written extensions before 1 January 2024 or apply for another visa such as a TSS visa (in which case the current WHM visa validity period will determine if a written extension is required).
Under the Department’s current policy, an extension of time may be granted if:
- The employee has made an application for a work visa that will allow them to work for the same employer.
- There are exceptional circumstances such as:
- the visa holder’s work is critical to a project that takes longer than expected (for example, a lawyer working on an extended trial); or
- the visa holder is doing disaster recovery work after a major disaster (for example, helping to rebuild after a flood); or
- 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).
However, the Department has advised us that this policy is being redrafted and may not remain the same. We will therefore need to await the new policy before being able to say with any certainty whether or not a particular application for extension will succeed.
The Department has also advised us that the Government is expected to release its Migration Strategy this year which may include the following reforms to the WHM program:
- restoring cultural exchange as the primary focus;
- not tying access to subsequent visas to the performance of work; and
- limiting the WHM program to a single 12-month visa.
We are not able to say with any certainty what these changes will be, however it does seem that the WHM will become less flexible as a tool for employers to manage temporary, seasonal or transient positions.
As always you should contact your Ajuria team for more information and assistance.
