The employer sponsored work programs can be a great way for businesses to fill their positions with highly skilled employees, and for overseas nationals to remain in Australia longer with a possibility of transitioning to Australian permanent residence.

For some time, Australia’s hospitality industry has struggled to find relevantly skilled Australians to fill their vacancies and as a result, businesses are turning to overseas nationals already in Australia – willing and able to start work immediately.

But, the ability to start employment within a reasonable timeframe will depend on the individual’s current immigration status and whether they have restrictive visa conditions. Many, will need to apply to have the visa conditions changed, or submit an employer sponsorship application, both of which can have lengthy processing times.

Here, we talk about the common trends when nominating hospitality occupations for work visas, as well as recent changes to the Temporary Activities 408 Visa (Australian Government Endorsed Event “AGEE”) and the Student 500 Visa in support of Australia’s economic recovery.

Employer Sponsorship

As with other sectors, the hospitality industry tends to attract more attention from the Department of Home Affairs (“the Department”) and applicants often require more supporting evidence from both the nominating employer and visa applicant to increase the chance of a successful outcome.

Partly, this is because all nominated positions must be deemed ‘highly skilled’ to use the TSS 482 visa or ENS 186 permanent residence programs. In the hospitality sector, there can be a fine line that determines whether the tasks and duties of a Cook, Chef or Café or Restaurant Manager are at, or below, the prescribed skilled level.  

In such instances, the Department have a number of additional policies that both the nominating employer and visa applicant need to meet including:

The Employer

• Must be operating a full-service café or restaurant, not a module based on them being a fast-food, takeaway, fast casual or limited-food service outlet

• The meals are prepared and cooked to order and generally excludes food made in a mass production setting

The Nominated Occupation:

• Café or Restaurant Managers: the Department want to see tasks and duties demonstrating leadership positions where the person is responsible for managerial tasks including planning of menus and events or functions. Other tasks and duties may be more aligned with a Café Worker or Waiter which are not typically available to the employer sponsored work visa programs and so, would result in the applications refused

• Chefs: tasks and duties are also relevant to leadership positions that are involved in the planning of menus. Additionally, Chefs monitor the quality of dishes, prepare food, cook food and advise other staff on required cooking procedures. There is a distinction between Chef and Cook which doesn’t currently have opportunities for employer sponsored permanent residence (unless applicants hold a TSS 482/457 with grandfathering provisions)

• Cooks: prepare, cook and season food. While this is not at the same level as a Chef, there is also a distinction between Cook and Kitchenhand which cannot normally be nominated under the employer sponsored work visa programs

The Visa Applicant’s Skill Set:

• The applicant must meet the skill level prescribed by both the relevant legislation and the Australian and New Zealand Standard Classification of Occupations (ANZSCO). At a minimum, TSS 482 visa applicants will need at least 2 years’ relevant work experience evidenced by written references and sometimes, payment of wages or salary. Further training, experience or relevant qualifications will also be required depending on the nominated occupation

• TSS 482 visa applicants nominated as a Chef often need to provide a positive skills assessment verifying their skill level in this occupation

408 Visa and Students in Hospitality and Tourism

The hospitality and tourism industries have faced extreme staff shortages and have been lobbying the government to help them hire overseas nationals without the current red tape. In response to this and the impact of COVID-19, the Minister for Immigration announced changes to the Temporary Activities 408 Visa (AGEE stream) and the Student 500 visa.

Effective immediately, these changes will give greater flexibility to these visa holders in Australia and employers needing to fill their vacancies to continue operating.

408 Visa Applicants

Temporary visa holders seeking the 408 (AGEE) visa may now be able to:

• Apply within 90 days of their visa expiry. This is a change from the original 28-day requirement, and

• Obtain a 12-month validity period with work rights if they can show they are working in the tourism and hospitality sectors. Previously, an applicant had to demonstrate they were working, or had a job offer, in a ‘critical sector’ of agriculture, health care, aged care, disability care, child care, food processing. The Department’s view on what constitutes food processing has been quite vague with a number of chefs and cooks being both successful and unsuccessful in obtaining work rights and a validity period for 12 months. If unsuccessful in getting the work rights, a 3-month stay period was given

Student Visa Holders

Most student visas are restricted to working up to 40 hours per fortnight, while their course is active. Now and until otherwise stated, students working in the hospitality or tourism industry can work more hours while employers remain subject to complying with Australian workplace law.

Conclusion

The Department can be quite strict with these types of applications so, it is important to get expert advice to reduce the risk of refusal, loss of significant costs and potential implications on future visa applications for the prospective employee. Whether you are a visa holder, visa applicant or Australian business, contact us today to discuss further.