The Subclass 400 Temporary Work visa is a new visa which was introduced on 23 March 2013. This visa allows the holder to temporarily work in Australia in a highly specialised and non-ongoing role.
If you need to work in Australia in a highly specialised, and you only need to perform this role for a period of 6 weeks of less, this new Subclass 400 visa now provides an alternative to the Subclass 457 visa (which can be time consuming and expensive to obtain which the requirements which the sponsoring business and the applicant need to satisfy).
So what kind of work are you allowed to perform as a Subclass 400 visa holder?
The role that the visa holder will be performing must be ‘non-ongoing’, which means that the work is likely to be completed within a continuous period of 3 months. Please note that the role itself must be non-ongoing. You can’t have a single role which will require more than 3 months of continuous work, and then rotate several Subclass 400 visa holders through this role. With such an on-going role, a Subclass 457 visa may be appropriate.
The visa holder needs to be performing a role that requires highly specialised skills, knowledge or experience that can assist Australian business and cannot reasonably be found in the Australian labour market.
DIAC’s policy states that the role should align with an occupation in ANZSCO Major Groups 1 to 3 (Managers, Professionals, Technicians and Trades Workers)
This visa is not intended for workers seeking to perform a role that is generic to their profession. For example, an electrician required to wire newly constructed premises would not meet this criterion as this activity can reasonably be performed by a licensed Australian electrician. However, if an electrical engineer employed by an overseas mining equipment manufacturer was required to diagnose and correct electrical problems related to newly imported mining equipment, then it could be found that they have particular specialist skills that are not reasonably available in Australia. The applicant will not meet this requirement if they will be using their skills to perform tasks which are generic in nature (even if the role itself and the applicant’s skills and/or experience are highly specialised). Their skills are not highly specialised skills if they can be replicated by reasonably available Australian skilled workers with similar experience and qualifications.
This requirement may be satisfied if the applicant has highly specialised skills that can be found in Australia, but the skill set in the Australian community is extremely limited so as not to be practicably available to the Australian employer.
This generally means that the Australian workers with the applicable skill set are already in employment and are not available to be contracted out. The Australian business will need to satisfy the officer that efforts have been made to contract the available workers in Australia. Cost relating to engaging workers in Australia is not to be considered as a relevant factor.
No adverse consequences on Australian employment
Under DIAC’s policy, in the absence of contrary evidence, this criterion may be satisfied if information provided as part of the application indicates:
- due to key aspects to the skill set required to perform the role, the applicant’s proposed employer is unable to find an appropriate candidicate in the Australian labour market and
- the work is highly skilled (that is, occupations in ANZSCO Major Groups 1 to 3) or otherwise highly specialised and
- the work is non-ongoing
If the case officer is concerned about the satisfaction of this requirement, he or she may ask for the following documents:
- evidence from a large reputable employment agency that there is a shortage of similarly qualified persons in Australia or
- evidence from the applicant’s proposed employer that they have tried unsuccessfully to hire an Australian to do the proposed work (for example, evidence of job search or training programs or letter of support from relevant union or local council) or
- details of contractual obligations relating to the servicing of a piece of equipment (for example, the work must be serviced or installed by an overseas provider) or
- information that indicates there is no time for an Australian to be trained to do the proposed work (although over a longer period this would be expected)
See the feedback that we have received from our clients.