Work (migration definition)
Statutory definition
Section 5(1) of the Migration Act 1958 (Cth) defines work as an activity that is ordinarily remunerated in Australia.
The definition is activity-based, not contract-based. Whether an activity constitutes "work" depends on whether the activity is of a type that is ordinarily paid in the Australian labour market, not whether the particular person performing it was in fact paid.
Explanation
The statutory definition of work is significant because many visa conditions restrict or prohibit working in Australia. A non-citizen who performs an activity constituting "work" in breach of a visa condition may be liable for cancellation of their visa under s 116 of the Act.
Key aspects of the definition:
- "Ordinarily remunerated" — the test is objective: would the activity typically attract payment in the Australian labour market? Voluntary work for a charity in a role that is normally paid (for example, as a chef or accountant) may still constitute "work" under the definition.
- Activity-based — the definition focuses on what is being done, not why or for whom. Unpaid internships and work trials in paid roles may constitute "work".
- Excludes genuine volunteering — activities that are inherently non-commercial and would not ordinarily attract payment (for example, helping a friend move house) do not constitute "work".
How this term is used
The definition is most commonly relevant to:
- Student visas (Subclass 500) — condition 8105 restricts work to 48 hours per fortnight while the course is in session
- Visitor visas — condition 8101 prohibits work entirely
- Bridging visas — work rights depend on the bridging visa class and the conditions imposed
- Employer-sponsored visas — condition 8107 restricts work to the nominated occupation with the approved sponsor
A breach of a work condition is a ground for cancellation under s 116(1)(b) of the Act. The cancellation is discretionary — an officer must consider representations before cancelling — but a finding that work was performed in breach of conditions is sufficient to enliven the power.