WHV 6 month restrictions, payroll companies etc

[Tindog]

Hi everyone,

I have the following situation, and I'm hoping that someone can offer me a clear answer:

- I worked as a contractor for Company A for 16 weeks (ended a couple of months ago)
- I was paid by the recruiters third party payroll company (the payroll company is the company listed on my payslips, with their ABN)
- Company A is now dissolved and the office has been taken over by Company B (parent company)
- Company B have invited me to complete a 10 week project (same type of work, same department, same office etc, but different role, responsibilities and project)
- The 3rd party payroll company will still be the company on my payslips

If I accept the 10 week project, I understand that is acceptable as long as I do not exceed 26 weeks (6 months).

My questions are:
1. Is my "6 months with one employer" relevant to the end client on my contract (Company A/B), or to the company on my payslip (payroll company)? So, if I were to work for an entirely different company after the 10 week project, would I encounter any problems if I went through the same recruiter and payroll company?

2. If the 6 months pertains to the end client, my understanding is that my work for Company B would be a continuation of Company A, as although they have different ABNs, the office is in the same location. Others have told me that it doesn't matter, as they are 2 different companies, and Company A is no longer operating in this location, so I could do 6 months with Company B if I wanted to. Which is correct?

I hope that's clear. I'm not looking for a "workaround", I want to make sure that I'm understanding the rules correctly, in the unlikely event that Company B invites me to extend my contract (and also if the recruiter finds me more work afterwards!) I'm keen to avoid a ban, as I'm considering applying for my PR next year.

Thanks for any advice!

[Marisawright]

When you say “third party payroll company”, do you mean you’re self employed and outsourcing your invoicing etc, or do you mean you’re going through an agency?

[Tindog]

59 minutes ago, Marisawright said:

When you say “third party payroll company”, do you mean you’re self employed and outsourcing your invoicing etc, or do you mean you’re going through an agency?

Going through an agency - sorry, I should have been more clear.

The employment contract itself is with the payroll company, and states: "The Employee will be employed by [Payroll Company Name]..."

And under Client:
"End User Company Name: Company A
Address: Company A office address
Agency/Client: Recruitment Company Name"
 

[Marisawright]

1 hour ago, Tindog said:

Going through an agency - sorry, I should have been more clear.

The employment contract itself is with the payroll company, and states: "The Employee will be employed by [Payroll Company Name]..."

And under Client:
"End User Company Name: Company A
Address: Company A office address
Agency/Client: Recruitment Company Name"
 

Then it does sound as though the agency is your employer and you can only work for them for six months.

Edited September 10, 2019 by Marisawright

[paulhand]

Generally speaking:

"For the purpose of condition 8547, the employer is the business for which the visa holder is directly working - that is, the end user.

This means a visa holder may be employed by the same labour hire company or contractor for more than 6 months, but may not provide services to the same end user for more than 6 months. A visa holder may, for example, be employed by a State/Territory Department of Education or Department of Health for more than 6 months, but may not provide services to the same school or health care facility for more than 6 months.

Visa holders cannot stay with any end user (in the same or a different position) beyond 6 months by using different employment agencies, business affiliates or sub-contracting arrangements."

and ... 

"Working for a business for longer than 6 months, in circumstances where there has been a change of name or of underlying ownership, would generally be considered a continuation of employment with the same employer. (If a new company has been created, however, - for example, a new ABN - the new company would be a new employer, even if the duties for the new company are similar to those performed for the old company. Working for the new company with a new ABN for 6 months would not be a breach of condition 8547."

 

[Tindog]

8 minutes ago, Marisawright said:

Then it does sound as though the agency is your employer and you can only work for them for six months.

That makes sense, thank you for your help.

If Company B wanted to renew my contract independently (i.e without involving the agency or payroll company), do you know if this would be within the rules? My physical location would still be in their office.

At that point I would have completed 12 weeks with Company A, employed by the agency. A further 10 weeks with Company B (parent co), still employed by the agency - so totalling 6 months.

[Tindog]

1 minute ago, paulhand said:

Generally speaking:

"For the purpose of condition 8547, the employer is the business for which the visa holder is directly working - that is, the end user.

This means a visa holder may be employed by the same labour hire company or contractor for more than 6 months, but may not provide services to the same end user for more than 6 months. A visa holder may, for example, be employed by a State/Territory Department of Education or Department of Health for more than 6 months, but may not provide services to the same school or health care facility for more than 6 months.

Visa holders cannot stay with any end user (in the same or a different position) beyond 6 months by using different employment agencies, business affiliates or sub-contracting arrangements."

and ... 

"Working for a business for longer than 6 months, in circumstances where there has been a change of name or of underlying ownership, would generally be considered a continuation of employment with the same employer. (If a new company has been created, however, - for example, a new ABN - the new company would be a new employer, even if the duties for the new company are similar to those performed for the old company. Working for the new company with a new ABN for 6 months would not be a breach of condition 8547."

 

Thank you Paul. So for clarification, Company B (parent company, different ABN) is considered to be a different employer - and therefore I would be able to extend my time with them, via the agency?

[paulhand]

The extracts I quoted are Departmental policy on the 6-month rule. 

I can't advise definitively on your specific situation, without seeing all the paperwork.

[Tindog]

25 minutes ago, paulhand said:

The extracts I quoted are Departmental policy on the 6-month rule. 

I can't advise definitively on your specific situation, without seeing all the paperwork.

Makes sense - thanks again for your help.