Have my firm shafted me for their own gain?

[Guest felchaladi]

I'm starting to get the impression I'm here on the wrong VISA.

 

In short, the company I work for are working with an Australian company on a new project (architectural design) and have sent me out here to work with said Australian company - for six months - on a 6 month working holiday visa. I'm still getting paid UK pounds into my UK bank account and paying UK taxes etc - but I'm here - getting told by EVERYONE that it all sounds rather dodge - and that I should be on some other kind of VISA.

 

I'm not particularly worried about it - I'm more annoyed that there's even room for this kind of doubt - especially because it wouldn't suprise me at all if my company had dodged a more expensive process/application and chose to gamble with my legitimacy to revisit Australia (imagining here that the worse case scenario would be I do get "caught" and told I can't come back)

 

I've emailed as much to immi - but unsuprisingly, they've simply called back with "call us" - which at present I don't really want to do without some further facts in hand to properly engage my employers.

 

Any help anyone?

 

Thanks

 

K

[andyhus]

Sorry can't help but just bumping it back to the top for you. Someone (who knows what they are talking about) will be along soon i think.

[Guest wanderer]

felchaladi,

Have my firm shafted me for their own gain?

I'm starting to get the impression I'm here on the wrong VISA.

 

In short, the company I work for are working with an Australian company on a new project (architectural design) and have sent me out here to work with said Australian company - for six months - on a 6 month working holiday visa. I'm still getting paid UK pounds into my UK bank account and paying UK taxes etc - but I'm here - getting told by EVERYONE that it all sounds rather dodge - and that I should be on some other kind of VISA.

I'm not particularly worried about it - I'm more annoyed that there's even room for this kind of doubt - especially because it wouldn't suprise me at all if my company had dodged a more expensive process/application and chose to gamble with my legitimacy to revisit Australia (imagining here that the worse case scenario would be I do get "caught" and told I can't come back)

 

I've emailed as much to immi - but unsuprisingly, they've simply called back with "call us" - which at present I don't really want to do without some further facts in hand to properly engage my employers.

 

 

I suppose the first thing to note is that You would have applied for a WHV.

 

A WHV does allow you to work for one employer for up to six months even though the intent of a WHV is expressed as to have an extended holiday supplemented with short term working, sort of a contradiction you could say but still not illegal what you're doing, others having done it.

 

From a company perspective, DIAC could I suppose be interested but again seeing as it is you who applied for the WHV visa, their interest could be confined to whether you work for them for more than six months and then that interest would also extend to you breaching visa conditions and that could earn you a black mark if DIAC were aware of it.

 

You say DIAC have called! you back and so they have your name and contact details or did they just return an email? - and it'll really depend on the content of your email to them as just how interested they may get.

It'd seem that the correct visa that a company should have been involved in would have been a 457 Employer Sponsored Visa and there is quite some more work involved in getting one of those in place.

There are also Business ETAs but more limitation with those.

 

The other issue you need to look at is the legality of having your salary paid into your UK bank account and Australian Taxation implications for whilst I've known of that being possible, it would not normally occur on a WHV that I know of and so:

. that may make your company implicit in being party to a dodgy arrangement for if you are still employed by your UK company and have in effect been transferred or seconded here, another visa other than a WHV should probably have been used and I'd still have a look at www.ato.gov.au re your liability on tax here.

. coming on a WHV and being employed here definitely makes taxation here an issue.

 

Something of a little mess to be sorted!

[Guest]

I don't think you are being shafted but you do need to consider your long term plans, once your six months are up you will not be able to work in Oz without a different visa being granted.

 

A WHV allows you to work for up to six months and travel for 6 months more - it is not ypical to do professional work, our Au Pair is on such a visa but there is no reason why you can't. As the company you work for are British it makes sense for them to pay you in £ however you are probably missing out on some Aussie tax breaks such as the living away from home allowances.

 

I am in negotiations with a potential employee in the UK at the moment and I asked him if he was under 30 with the view to getting him out quickly on a WHV, this would then allow time for a temporary business visa (457) to be put in place, allowing him to stay for up to 4 years. After two years he would be eligible for ENS visa (permanent employee sponsored). I am not shafting him I am offering him a great opportunity!

 

I would avoid talking to DIAC though - it may be worth talking to a migration lawyer/agent first in any case. If I'm wrong and there is some legal issue DIAC will still deprt you whether you were the one that drew it to their attention or not.

 

I would think one of the experts on this site will be along to offer an informed view soon.

 

jules

[Guest wanderer]

Jules,

I don't think you are being shafted but you do need to consider your long term plans, once your six months are up you will not be able to work in Oz without a different visa being granted.

 

A WHV allows you to work for up to six months and travel for 6 months more - it is not ypical to do professional work

That's not so Jules for with a WHV you have no limitations on what sort of work you want to do [that you are qualified/licensed for] and can in fact work the full 12 months but only 6 months with the one employer.

 

I am in negotiations with a potential employee in the UK at the moment and I asked him if he was under 30 with the view to getting him out quickly on a WHV, this would then allow time for a temporary business visa (457) to be put in place, allowing him to stay for up to 4 years. After two years he would be eligible for ENS visa (permanent employee sponsored). I am not shafting him I am offering him a great opportunity!

 

You may feel you are offering a great opportunity but you are in fact enticing someone to breach DIAC principles of not using the appropriate visa

 

and ultimately though it is probably neither here nor there, if the potential employee is not ready to settle down, wants to travel a bit and perhaps would have in mind if young enough to return on a second WHV, you may be eroding his opportunity to set that up.

[Guest felchaladi]

I suppose the first thing to note is that You would have applied for a WHV.

True - but only on the advice of my employers. I am paid to deliver services for which we can charge quite large fees for - not administrate my employment - so I (perhaps stupidly) trusted they'd investigated all the conditions necessary and were playing fair.

 

A WHV does allow you to work for one employer for up to six months even though the intent of a WHV is expressed as to have an extended holiday supplemented with short term working, sort of a contradiction you could say but still not illegal what you're doing, others having done it.

The thing is I'm not working for an Australian employer - I'm working IN Australia for a UK employer!?

 

From a company perspective, DIAC could I suppose be interested but again seeing as it is you who applied for the WHV visa, their interest could be confined to whether you work for them for more than six months and then that interest would also extend to you breaching visa conditions and that could earn you a black mark if DIAC were aware of it.

Well I have no plans to stay any longer than needs be - and fully appreciate the whole 6 month limit I'm presently bound to - and look forward to it's end to tell you the truth.

 

You say DIAC have called! you back and so they have your name and contact details or did they just return an email? - and it'll really depend on the content of your email to them as just how interested they may get.

A mistake on my part - email replied, not called. I used a pseudonym with my first email. Of course they wanted me to call to get my details down.

 

It'd seem that the correct visa that a company should have been involved in would have been a 457 Employer Sponsored Visa and there is quite some more work involved in getting one of those in place.

There are also Business ETAs but more limitation with those.

See those immediately sound more legitimate than what I'm on - and certainly sound a lot like the ones I've been suggested I should be on. I don't suppose anyone here knows off hand what kind of money (and time) one of these cost? my WHV cost something like $200-300 IIRC - I'm guessing these others cost a fair bit more no?

 

The other issue you need to look at is the legality of having your salary paid into your UK bank account and Australian Taxation implications for whilst I've known of that being possible, it would not normally occur on a WHV that I know of and so:

. that may make your company implicit in being party to a dodgy arrangement for if you are still employed by your UK company and have in effect been transferred or seconded here, another visa other than a WHV should probably have been used and I'd still have a look at www.ato.gov.au re your liability on tax here.

Hmmm - it is all starting to sound dodgier and dodgier by the minute. Thanks for the link - I'll check it out tomorrow.

 

Something of a little mess to be sorted!

Indeed.

 

 

 

NB: Incidentally, flying between two cities (in different states) for a long weekend - do I need to carry all my VISA documentation?

[Alan Collett]

I can imagine DIAC being very interested in this "arrangement" - tread carefully, and consider taking professional advice to protect your position.

 

Best regards.

[Les Mighalls]

I can imagine DIAC being very interested in this "arrangement"

 

Not to mention the ATO.

[Guest wanderer]

A 457 is not all that much more expensive - Employer Sponsored Temporary Visa Charges

and it would probably not have taken all that long to arrange.

 

The Business ETAs are next to nothing but not really for working much at all - ETA (Business Entrant)(Subclass 956 and 977)

 

Re:

The thing is I'm not working for an Australian employer - I'm working IN Australia for a UK employer!?

 

If I was in your shoes, they would have been holiday tramping boots and I might have had my employer offering paid leave for whatever length of time because there was this interesting project which they knew from your work with them that you may have an interest in while you were on holidays.

 

Just so happens that you did take a geek and whether it was the secretary's shortish skirt or whatever you got so interested to participate for free because whilst the Project management team were happy enough for you to be involved, there was no budget to take you on as additional staff.

 

You're a lucky bloke having an employer like that!

 

Now there would of course be sceptics about if you got challenged but then that letter of encouragement you got from the chairman a year back which stated how the organisation recognises talent and is prepared to support overseas experience would actually support such a scenario, might even keep the two Amigos happy.

 

And that your company has an association with the Oz company is par for the course.

Hmmm - it is all starting to sound dodgier and dodgier by the minute. Thanks for the link - I'll check it out tomorrow.

 

May even allow you to dodge back on to main street with words about what such a good employer you have without bothering to spread the news otherwise you'll have guys after your job, SuperEmployer [your UK based one] is of course is confirming what taxation requirements are correct .

[Guest Jamie Smith]

This is not immigration advice, just amateur opinion about tax administration.

 

If you're over in Aus on a separate work visa in the name of an overseas employer and all Australian costs like accommodation and meals costs are covered by expenses and your base wages are going into the UK bank, that would sound normal, - but you're not, you're on your own WHV and as such you have obligations to declare any income earned in Aus (and the UK) and pay tax even if its refunded later.

 

On your WHV you are indeed working and need to account for your income, and and pay Aus tax. I don't think a WHV can accommodate an overseas payment structure, and I would think you're now breaching tax laws in two countries.

 

Even if you were to get a share of your UK wages paid in Australia so you can show an income you'd still need to pay tax and claim the PAYG back when you leave, having been here less than 12 months, and that might also drop your Uk income into a lower tax bracket?

 

It's getting messy, yes? as you might need to declare your Uk income on your Aus tax return and vice versa, and then look at if your Uk income is taxable in Aus on a temp visa (I think not but hey I'm not an accountant like Alan).

 

But it's a good advice to protect your own visa position as an employer can drop you any time. Think not just for now but also the future, and get yourself over to the right visa that allows sales reps to be selling overseas items in Australia that also allows you to be paid in the UK. WHV is the wrong visa for what you're doing, and you're in breach of tax obligations while on a WHV.

[Guest felchaladi]

Thanks for all the feedback everyone - although as you can well imagine I'm now starting to get slightly more twitchy about "what to do next".

 

I've just been chatting with our finance manager who's a good friend and reliable source of "inside info"2 from higher up our company's food chain - and they're of the firm understanding there was no financial leaning on the decision to go with the WHV over anything else. Time was a factor (I needed to be able to go within a month's notice) - but so far as I can dig, there's nothing to suggest underhand workings. Incompetence maybe. But incompetence/ignorance is no excuse in British law and I'm sure it's much the same here.

 

What I'm going to do first is write a (polite) email to the key players of my firm who have seen it fit to get me out here - and explain to them what I've been told by my Australian counterparts here - and what's been posted here - and then ask THEM to provide documentary evidence (rather than heresay) to PROVE me being here on a WHV is legitimate and without question.

 

If they can't satisfy that, then I will need to ramp it up to second email suggesting a harder line course of action on my part (returning home in short). Since there's a lot of fee in me being here - and a lot of inter-company trust to be maintained, that will certainly get their interest.

 

NB #1: Any thoughts on the flights enquiry a post or two back?

 

NB #2: Is their a retrospective process for "upgrading" your visas?

[Guest Jamie Smith]

At this stage all legal risk and penalties to pay are yours and yours alone.

 

Felchaladi being on a legitimate WHV doesn't sort your tax problems if the pay structure doesn't change. In essence your current structure probably has you breaking the tax laws here in Aus, just so your employer could get you over there quicker.

 

What's the bet they wouldn't cover your legal costs and tax fines/penalties or compensate you for being booted out of Australia not to return for a couple of years, if it came to that?

 

You would be the one to be penalised, not them. Any good employer would not put their key employee in a position of breaking the law in another country.

 

I'd ask my boss to legitimise my employment either by paying me in AUD in Australia and covering any tax complications in both countries, or getting you onto another visa.

 

ASAP.

[Guest wanderer]

felchaladi,

What I'm going to do first is write a (polite) email to the key players of my firm who have seen it fit to get me out here - and explain to them what I've been told by my Australian counterparts here - and what's been posted here - and then ask THEM to provide documentary evidence (rather than heresay) to PROVE me being here on a WHV is legitimate and without question.

 

If they can't satisfy that, then I will need to ramp it up to second email suggesting a harder line course of action on my part (returning home in short). Since there's a lot of fee in me being here - and a lot of inter-company trust to be maintained, that will certainly get their interest.

 

NB #1: Any thoughts on the flights enquiry a post or two back?

 

NB #2: Is their a retrospective process for "upgrading" your visas?

 

What is the reference to flights enquiry?

 

There's not much in way of retrospectivity re upgradings that I'm aware of and if you so decided you could have a new visa application put in that would over-ride your 417, say with a 457 for instance but that will in fact change your whole employemnt structure - ie. no longer employed by UK company but the one in Oz.

 

Despite what Jamie says and I think he is missing the point that you can be on a WHV with the right structure, I'd be talking to your Finance Manage mate and the Chairman re what I posted earlier:

If I was in your shoes, they would have been holiday tramping boots and I might have had my employer offering paid leave for whatever length of time because there was this interesting project which they knew from your work with them that you may have an interest in while you were on holidays.

 

Just so happens that you did take a geek and whether it was the secretary's shortish skirt or whatever you got so interested to participate for free because whilst the Project management team were happy enough for you to be involved, there was no budget to take you on as additional staff.

 

You're a lucky bloke having an employer like that!

 

Now there would of course be sceptics about if you got challenged but then that letter of encouragement you got from the chairman a year back which stated how the organisation recognises talent and is prepared to support overseas experience would actually support such a scenario,

 

If in fact you are on a WHV [on leave from your UK company] and participating in a project here but not being paid for it [which you aren't] the WHV is acceptable for what you are doing and people take holidays all the time and do not have to pay tax here on holiday pay.

If you're having accommodation provided, that could be construed as payment but there are many situations about in Australia of visiting academics/professionals and I'd be surprised if accommodation is never supplied or that they are ever followed up re taxation on construed income, but something to discuss with the FM for he ought to be up with taxation issues or have someone in the Co. who is.

If it's an issue, perhaps the UK Co. footing the bill is another way around that.

 

If the Finance Manager sees it that way, and you get your UK people to consider that you're on a holiday and can back that up with suitable documentation, I'd think you may have a clean nose.

[Guest proud2beaussie]

I think the member was asking about whether he needed to carry his full visa documentation with him when travelling domestically.

NB: Incidentally, flying between two cities (in different states) for a long weekend - do I need to carry all my VISA documentation?

From my point of view I would suggest that it's probably not necessary ,just carrying your passport should suffice I would think as you don't need to be immigration cleared when travelling interstate,but domestic airlines often require photographic ID when checking in,even for domestic travel.

[Guest Jamie Smith]

Yeah, well wanderer, my advice is not about trying to misrepresent any circumstances or leave the OP exposed in any way. But then I post my name and identity online so I can't do anything else and neither do I want to. Your advice is more to protect the employer at the risk of the OP.

[Guest felchaladi]

At this stage all legal risk and penalties to pay are yours and yours alone.

Good thing I've got a company credit card then. Not that that would help with the legality of it all.

 

Felchaladi being on a legitimate WHV doesn't sort your tax problems if the pay structure doesn't change. In essence your current structure probably has you breaking the tax laws here in Aus, just so your employer could get you over there quicker.

What's the bet they wouldn't cover your legal costs and tax fines/penalties or compensate you for being booted out of Australia not to return for a couple of years, if it came to that? You would be the one to be penalised, not them. Any good employer would not put their key employee in a position of breaking the law in another country.

They're quite a legitimate firm - I can't imagine they'd risk that kind of tomfoolery to "teach me a lesson" (I'm quite an insubordinate outspoken maverick) - especially not with UK employment law being in favour of the employee. I imagine anything done wrong was accidental. But that doesn't make it right. Or me feel any better.

 

I'd ask my boss to legitimise my employment either by paying me in AUD in Australia and covering any tax complications in both countries, or getting you onto another visa.

 

ASAP.

That's kind of how I'm thinking of wording my demands if they fail to produce any evidence to confirm the legitimacy of me being here on a WHV, which I appreciate can be interpreted to work as "wanderer" has been proposing -

 

There's not much in way of retrospectivity re upgradings that I'm aware of and if you so decided you could have a new visa application put in that would over-ride your 417, say with a 457 for instance but that will in fact change your whole employemnt structure - ie. no longer employed by UK company but the one in Oz.

See this is where it could get even trickier - since my firm HAS an Australian arm - but it's in it's infancy - and is presently more of a name-placeholder arrangement to suggest an Australasian presence than a company of people etc. They SHOULD probably be being me through that. But as it is I'm paying international withdrawal fees with my own money to get at my own money. (But that's because I've been slow to get a local bank account open)

 

 

If you're having accommodation provided, that could be construed as payment but there are many situations about in Australia of visiting academics/professionals and I'd be surprised if accommodation is never supplied or that they are ever followed up re taxation on construed income, but something to discuss with the FM for he ought to be up with taxation issues or have someone in the Co. who is.

If it's an issue, perhaps the UK Co. footing the bill is another way around that.

Accomodation is another tricky one. I'm staying in an apartment owned and rented by one of the Australia firm's employee's mother. So (I think )the money for that is channelled through the two company's fee arrangements. I personally am not paying a penny/cent.

 

If the Finance Manager sees it that way, and you get your UK people to consider that you're on a holiday and can back that up with suitable documentation, I'd think you may have a clean nose.

See I don't want to work like that - I'm on the cusp of 30 and I'm getting quite tired of running games around the systems and institutions of this world - and actually quite like being legitimate. Ten years ago I wouldn't have cared. But I'm a different, older person now - and since my 50hr+ working week is nowhere close to a holiday - it's quite vexing to think I'm to play a dodge.

 

I think the member was asking about whether he needed to carry his full visa documentation with him when travelling domestically.

 

From my point of view I would suggest that it's probably not necessary ,just carrying your passport should suffice I would think as you don't need to be immigration cleared when travelling interstate.

I was indeed - and thanks for that. I guess I'll still keep them tucked in my bag - I just won't go waving them about.

[Guest wanderer]

Hey felchaladi,

See this is where it could get even trickier - since my firm HAS an Australian arm - but it's in it's infancy - and is presently more of a name-placeholder arrangement to suggest an Australasian presence than a company of people etc. They SHOULD probably be being me through that. But as it is I'm paying international withdrawal fees with my own money to get at my own money. (But that's because I've been slow to get a local bank account open)

 

Well, if your company isn't quite set up here in Oz. but wants to and you like what you see, perhaps there's a strategy here for you to get the Oz real Co. to do an ENS PR sponsorship to have you setting up the Australian arm of the UK business as Australian UK Co. Manager and for time being you'll be seconded from the Oz R Co.

Get a contract drawn up between the Co.'s to cover whatever set-up you want including a lucrative remuneration to shout your advisors a grog or two.

You certainly have leverage with "hey guys, I'd like to not be a Rodger".

 

As for the "holiday pay" transfers, yep get yourself an Aussie account [ if you've only been here a few weeks you may be able to still open one just with passport as ID or you could need something more] and do electronic transfers of a few thousand $$$ at a time, used to be about $30 flat rate last time I did some, a few $$$ more to have a bank do it.

You may even find that for the interim, Oz. R Co. has an account that a transfer could be made to and then you get payments, but that's just adding more complexity whereas getting an account open should be no big deal.

Accomodation is another tricky one. I'm staying in an apartment owned and rented by one of the Australia firm's employee's mother. So (I think )the money for that is channelled through the two company's fee arrangements. I personally am not paying a penny/cent.

 

Oh what a web is woven! and it's just not the accommodation angle but fee paying structure between the two companies dosn't exactly support the holiday scenario either, if somebody was being nosey!

 

But then again, what they do for you to have this interesting holiday can be their business!

Back to the FM.

See I don't want to work like that - I'm on the cusp of 30 and I'm getting quite tired of running games around the systems and institutions of this world - and actually quite like being legitimate. Ten years ago I wouldn't have cared. But I'm a different, older person now - and since my 50hr+ working week is nowhere close to a holiday - it's quite vexing to think I'm to play a dodge.

 

The cusp of 30 eh!

Best years of life are ahead and it can still mean playing Rodger the Dodger, it's the ricochets you have to look out for.

 

Not that I'm applying to be your life coach or anything but I'd couch my words back to the gurus in UK as:

. hey we may be able to have this paid holiday you've sent me on work, but there's a few potential implications re legality of visa/taxes that I'd like addressed to make sure I'm not going to end up between a rock and a hard place - give the detail/options as we've discussed.

 

And you'd like their acceptance for enquiries with the appropriate professionals on the understanding of costs being met by the company.

 

And if of interest to you re the longer term Australian arm of the business, you slide thoughts about sponsorship into the arena that includes reference to inter company contract.

 

I was indeed - and thanks for that. I guess I'll still keep them tucked in my bag - I just won't go waving them about.

 

You may need photo ID for internal flights and so without a Drivers Licence or whatever, you'll probably be using the passport and no big deal with that or if you have a UK drivers licence with photograph on you, that may be acceptable.

 

James,

Time to move the car again!

Yeah, well wanderer, my advice is not about trying to misrepresent any circumstances or leave the OP exposed in any way. But then I post my name and identity online so I can't do anything else and neither do I want to. Your advice is more to protect the employer at the risk of the OP.

 

Well whilst my advice is about aligning legalities and practicality together in Not Exposing felchaladi, you may want to claim it as misrepresentation but it is certainly not about protecting the employer [they can look after themselves] but certainly making sure that felchaladi does use the services of the Oz. and UK companies to make sure he is legal.

 

As I've said from the outset.

. being here on a WHV is entirely legal.

. his payment arrangement does need examination re taxation and I've not suggested otherwise though I've made mention of people being paid by overseas corporations into overseas accounts and whilst never exploring their taxation situation with them, I'd suspect they've not been paying tax in Australia whether legal or not - but as I've said, something that may need work on.

I find your conclusion that my advice is to support the employer is without foundation.

[Alan Collett]

This is what I'd be asking of the UK company:

 

- sponsor me for a 457 visa, and

 

- give me a salary package that includes the tax free Living Away From Home Allowance

 

The UK company can seek approval to act as an Overseas Business Sponsor by lodging the appropriate paperwork through the Australian High Commission in London. Lodge the nomination and visa applications at the same time to facilitate quick processing.

 

Register the UK company for PAYG withholding with the ATO (whether or not the Australian branch is also registered - with ASIC and the ATO - is contingent on whether income is generated in Australia).

 

We have done this plenty of times for UK company clients who are setting up an Australian office.

 

Recent timelines for 457 visa processing (including the business sponsorship application) through London are 4 to 6 weeks, but there is a need to address DIAC requirements prior to lodging the application, and this is where the timeline can lengthen - you need someone reliable and efficient bringing together company related information, and someone who knows what the AHC in London is looking for.

 

The Aussie company payroll is then run, relevant Returns are lodged, etc (again - shout out if assistance is required), and you can get on and do what you are good at instead of spending time worrying about your visa status.

 

At the risk of being too forward, please feel able to telephone me if you want more assistance:

Go Matilda - Your Gateway to Australia - Contact and Feedback

 

You can call me via any office in Australia (I am presently in Geelong).

 

I'm happy to have a chat with your UK finance person too.

 

Best regards.