WHMs: Bushfire locations and work defined, backdated to after 31 July 2019 and before 1 March 2020?

As previously reported, the Government announced changes to what will be considered specified work for Subclass 417 - Working Holiday visas and specified Subclass 462 work for Subclass 462 - Work and Holiday visas to assist in recovery efforts and stimulate the local economy in bushfire ravaged regions. Yesterday, new legislative instruments were registered to provide legal certainty for these announcements.

Existing 417 and 462 visa holders must undertake specific work in specific areas to apply for a second and third working holiday visa among other requirements, such as still being under the age cap for their country of passport. What activities are counted as work and where differs slightly with these visas. A second working holiday visa requires at least 3 months of specific work, while a third working holiday visa requires at least an additional 6 months of specified work which cannot be completed on a first working holiday visa.

In both instruments, a new definition of bushfire recovery work has been created, which includes “work undertaken on a volunteer basis, to assist with bushfire recovery efforts” and includes: “construction, farming, or any other work in association with recovery or restitution of land, property, farm animals or wildlife; and providing support services or assistance to people living, working or volunteering in the affected areas.”

The ability to work on a volunteer basis removes the need for any applicant to be “remunerated for that work in accordance with relevant Australian legislation and awards”, which is a requirement for any specified work that is not bushfire recovery work.

The location where bushfire recovery work must be undertaken is not defined by postcode (as non-bushfire recovery work is) but instead defined by local government areas.

There appears, however, to be a couple of drafting errors in relation to when bushfire recovery work can be counted. The first is that the 417 instrument states this work can be carried out after 31 July 2019. There is no mention of any date in the 462 instrument.

The second is that the Explanatory Memoranda in both instruments state that the instruments’ intentions are to specify the bushfire affected areas listed are to be after 31 July 2019 and before 1 March 2020, meaning only this type of work will count in these areas during this time period. Unfortunately, this is not confirmed in either instrument creating legal uncertainty these instruments were supposed to address.

Another change is that the definition of construction work activities for 462 visa holders has been changed to be consistent with 417 visa holders.

The last announcement back in mid-February, that WHMs can work for same employer if assisting in with bushfire recovery efforts for up to 12 months without needing permission from the Secretary, is a simple policy change that is confirmed on the Department of Home Affairs’ website.