Question of the Week
How contractors and freelancers can work longer than 6 months on a WHV?
Category: Work Visa
Question asked
I have a 417 Working Holiday Visa (WHV) that started on Oct 15, 2019. (I am from Canada)
I was contracted as a freelancer to work for a company/studio for the month of November, and then again for one week in February.
I have my own ABN and invoiced the studio and was paid by one ABN, but the work I did was for multiple end clients.
The company has now asked to contract me again in June. Although 6 months has passed since I first invoiced them, I have spent the majority of my time in Australia not working for them. It is also for a new end client, however I will be billing and be paid by the same company as in Nov/Feb. Am I legally allowed to accept this new contract, or is it in breach of my visa rules?
Note: The job is animating video content, and I have completed it by working from home.
Answer provided by Migration Agent
Hello T.
Your Working Holiday Visa allows you to work for 6 months for any one employer. As you have only worked for about 5 weeks you still have the ability to work for that same employer again. As you bill the company and not the client you are seen to be employed/contracted by that company. There are some circumstances in which the 6 months could be extended but I am not sure that applies to you just yet as your WHV expires in October.
Please feel free to get back in touch if you need as this site allows you one clarification request.
If all is great - then good luck with the work! Sounds like fun.
----- Clarification Request -------
Hi,
You've stated that I've only worked 5 weeks for the employer, but the info on the Australian Immigration website states "The 6 months starts from the day you start work. It includes full-time, part-time, casual, shift and voluntary work. It is based on the length of time that has passed since you started working, not how many hours or days you have worked.
Do I calculate my time differently because I am a contractor? (website here: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417/6-month-work-limitation)
Thanks
---- Answer by Migration Agent -----
Hi T.
Yes, although it is a little ambiguous the fact is you haven't worked for the employer for 6 months - what that line refers to is if you are employed and working for the same employer - part time - full time - casual etc. it doesn't matter - you have worked for 6 months - you, on the other hand, only worked the one month and then a week - and as a contractor.
So you haven't been employed or in their employ for 6 months. The actual Department Policy Document says this "For condition 8547, the calculation of six months’ work starts from the day the visa holder starts work or begins training for a specific role. The six-month period is based on the length of time that has passed since employment began, not how many hours or days have been worked.
If the visa holder is not in an ongoing employment relationship, this period need not be continuous. A visa holder may, for example, be employed for three months, followed by a two-month period of travel (during which time there is no ongoing employment arrangement), and return to the same employer for a further three months.
However, breaks between periods of work in circumstances where the employment arrangement is ongoing – for example, where paid or unpaid leave was granted – count toward the six-month total.
Visa holders wanting to determine whether they are in an employment relationship under the general law should be advised to seek independent advice.
Condition 8547 applies to all work, regardless of whether it is full-time, part-time, casual, shift or voluntary.
So as you can see - you are able to work. And as it says you should check to see whether or not you are actually in an employment relationship at all. In which case, again, you will be fine to take up further work.
I hope this has helped.
Thank you for using Ask-An-Agent. If you need further services from myself or a registered migration agent, please contact Amy at amy.jacobson@ask-an-agent.com.au - don't forget to mention your Question ID so that I can keep providing immigration services to you.
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