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Work Condition 8101 - “No Work”

The contents of this article are correct as at 30 June 2009

This article is the first in a series of four that will address work conditions.

Temporary visas including visitor visas, student visas, temporary business visas and bridging visas are granted with work conditions attached.

These restrict whether the visa-holder can work, how much they can work and where or for whom they can work.

Any breach of these conditions can have serious consequences for the visa-holder and family members, including visa cancellation. It is therefore important for visa-holders to understand the requirements of work conditions imposed.

Work conditions imposed on family members may differ from those imposed on the primary visa holder. For this reason each visa-holder should be aware of the work conditions attached to their own particular visa. Work conditions appear on the visa label as well as on the grant-of-visa letter/email.

This article will explain condition 8101, the “no work” condition which is imposed, for example, on visitor visas.

“No Work” - Condition 8101

Condition 8101 means that the visa-holder is not allowed to engage in work whilst in Australia.

Definition of “work”

“Work” is defined as “an activity that, in Australia, normally attracts remuneration.” However, there are some activities which can be engaged in without breaching condition 8101 and some circumstances where the Immigration Department is likely to be flexible. These are considered below.

Volunteer Work - Temporary visa-holders will not be in breach of condition 8101 if they engage in volunteer work whilst in Australia that:
  • Is of benefit to the community
  • Is for a non-profit organisation
  • Would not have otherwise been offered as paid work to an Australian resident
  • Is unpaid (although board and lodging is acceptable); and
  • Is 3 months or less

Child care work by nannies/ carers who are accompanying their employer-family on holiday in Australia for short periods.

Domestic Work for Family in Australia - Where visitors assist their family members in Australia with domestic work on a one-off basis, the Immigration Department is likely to take a flexible approach. For example, this would apply to a visitor helping out her sister who has just given birth for a short period of time. Immigration Department policy indicates that up to 12 months stay can be considered appropriate in some circumstances. However, where ongoing assistance is required by the Australian resident family (such as child care or medical care) it is expected that permanent arrangements would be made utilising services available in Australia.

Online Work –
For tourists holidaying in Australia over short periods it is likely that online work (such as answering emails) which is intended at keeping on top of work back home will not breach condition 8101. However where online work is not just incidental to the visa-holder’s travels in Australia the condition may be breached.

Work Experience –
Work experience is not considered acceptable for tourist visa-holders. However there are certain limited circumstances where it may be acceptable for certain business visa-holders to undertake an internship.

Consequences of Breach

If the Immigration Department becomes aware of a breach of condition 8101, it may cancel the visa. In deciding whether or not to cancel the visa the Department is likely to consider factors such as the reasons for and the extent of the breach.

Generally speaking a visa will not be cancelled if the breach occurred in circumstances beyond the visa-holder’s control. The visa-holder’s purpose in travelling to and staying in Australia will also be considered. For example whether a tourist visa-holder is a genuine tourist or whether they had intentions to work in Australia. Another consideration may be the degree of hardship that the visa cancellation would cause to the visa-holder and any family members.

Further Consequences of Condition Breach

The primary risk for a visa-holder who breaches their work condition is that their visa will be cancelled, they may be required to leave Australia, and they may face restrictions on returning to Australia.

Furthermore, any work experience gained in breach of the work condition will not be considered if the visa-holder chooses to apply for a further Australian visa in the general skilled migration scheme. The points that are awarded for previous experience and which increase the applicant’s prospects of success will not be available for any work that was undertaken in breach of visa conditions.

If you have any concerns about the work conditions attached to your visa, or if your visa has been threatened or cancelled please click here to contact us and discuss.