CHOI (Migration)
[2017] AATA 1306
•17 July 2017
CHOI (Migration) [2017] AATA 1306 (17 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr YEONG GU CHOI
CASE NUMBER: 1702123
DIBP REFERENCE(S): BCC2016/3128176
MEMBER:Frances Simmons
DATE:17 July 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.
Statement made on 17 July 2017 at 5:20pm
CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Remuneration for work – Underpayment and exploitation – Applicant not paid in accordance with relevant Australian legislation and awards
LEGISLATION
Horticultural Award 2010, cl 15
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.111, cl 417.211, cl 417.221, IMMI 16/087
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 January 2017 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 September 2016. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.417.211.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because the delegate was not satisfied that the applicant was remunerated for his work in accordance with relevant Australian legislation and awards.
The applicant appeared before the Tribunal on 20 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has met one of the requirements for a second working holiday visa. That is, whether he has carried out 3 months ‘specified work’ in regional Australia for a period or periods equivalent to 3 months full time work.
At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.417. 211.
The applicant arrived in Australia on 24 September 2015.
In his application the applicant declared that he undertook specified work with the Farm Highway Pty Ltd (ABN 93 607 016 160) from 7 June 2016 to 20 September 2016 in the 5341 regional postcode area.
The applicant provided a completed form 1263 employment verification form (unreadable due to low resolution); two payslips from the Farm Highway Pty Ltd; a work questionnaire which states, relevantly, that he worked casual hours 6-7 days a week, seven to nine hours per day; and an electronic bank transaction print out.
The applicant also provided: two payslips dated 13/09/2016 and 20/09/2016 that show gross payments of $221 and $382, resulting in only $38 and $172 after tax and deductions. No other payslips were provided to the Department.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because the delegate was not satisfied that the applicant was remunerated for his work in accordance with relevant Australian legislation and awards.
The applicant provided additional material to the Tribunal. This material included, but is limited to: multiple photographs of the applicant with fellow fruit pickers; a The Farm Highway Piecework agreement entered into by the Farm Highway and the applicant on 8 June 2016 (‘the Piecework agreement); bank statements in the applicant’s name; and numerous payslips for the period between June 2016 and September 2016.
The payslips indicate the applicant was paid a different amount each week. The applicant has produced pay slips that show in July 2016 he was paid as follows: between 04/07/2016 and 10/07/2016 he was paid gross pay of $402.30 and $190 after tax and deductions (net pay); between 11/07/2016 to 17/07/2016 he was paid gross pay of $343.30 and net pay of $132.7; between 18/07/2016 and 24/07/2016 he was paid $309.30 and net pay of $109; between 25/07/2016 and 31/07/2016 he was paid gross pay of $424.0 and net pay of $202.90.
The applicant has produced pay slips that show in August 2016 he was paid as follows: between 01/08/2016 – 07/08/2016 he was paid $482.60 and net pay of $253.90; between 08/08/2016 and 14/08/2016 he was paid $340.2 gross pay and net pay of $142; between 15/08/2016 and 21/08/2016, he was paid $352.70 gross pay and net pay of $146.80; between 22/08/106 -28/08/2016 he was paid $433.3 and net pay of $216.90.
The applicant has produced pay slips that show in September 2016 he was paid as follows: between 29/08/2016 and 04/09/2016 the applicant was paid gross pay of $382.0 and net pay of $172.30; between 05/09/2016 and 11/09/2016 the applicant was paid gross pay of $221 and net pay of $38.3; between 12/09/2016 and 18/09/2016 the applicant was paid $307.0 and net pay of $119.1; between 19/09/2016 and 25/09/2016 he was paid gross pay of $300.3 and net pay of $107.3.
When the applicant appeared before the Tribunal he confirmed that he was currently living in Haymarket and working at a Karaoke bar. He told the Tribunal that he understood that his application for a second working holiday visa was refused because the Department said he had not been paid enough.
The applicant confirmed that after he first arrived in Australia he returned to Korea before travelling back to Australia. After he returned to Australia he found a farm to work at in Renmark in South Australia. He provided evidence about how he travelled to his place of work. He gave evidence that he belonged to a crew of workers and they worked at different farms in the same area depending whether work was available. He started the work in early June and he stopped working around the end of September or early October.
The applicant gave evidence he worked around five and half or six days per week. When it was very busy he would work seven days a week. He said it wasn’t often that busy because there was usually rain every week. When it rained there would be no work and he wasn’t paid. He gave evidence that he wasn’t paid per hour but in accordance with a piecework agreement, which he had submitted to the Tribunal.
The applicant was not aware of the relevant award under which he was said to be employed. At the hearing the Tribunal discussed with the applicant that the relevant award was the Horticulture award. This award is referred to in the piecework agreement the applicant has submitted to the Tribunal.
The Tribunal advised the applicant that it accepted that he had carried out specified work in regional Australia for a period of at least three months. The Tribunal explained to the applicant that the issue in his case was whether he had been paid in accordance with Australian legislation and awards.
The Tribunal asked how much the applicant was paid when he worked five or six days a week. The applicant referred to the payslips he provided to the Tribunal. He said they were paid according to how many bins they filled. He said he was quite slow so he was paid between $200-$400 per week. He estimated the average pay he received each week was between $200 and $300 per week. This money was paid into his account. The applicant advised the Tribunal that the bank records he had submitted to the Tribunal did not show the payments from his employer. He said the payments were paid into another bank account. He indicated he could submit these records if required.
The applicant gave evidence that on average he worked around eight hours a day. He then said his actual working hours were about five to six hours after lunch breaks and going to different places. He said he picked oranges and mandarins. The applicant was asked to explain the payment arrangement: he said they had to fill bins. For oranges they were paid between twenty-four and twenty-six dollars per bin. For mandarins the payment was $85 a bin and for lemons they were paid $45 a bin. The applicant was asked how long it took him to fill up a bin with oranges. He said it took about an hour. He told the Tribunal that for mandarins they worked in pairs and it took one and half hours to two hours to fill a bin; mandarins required scissors to cut them.
At the hearing the Tribunal discussed with the applicant the issue of under payment. The Tribunal referred the applicant to information on the Fair Work Ombudsman website. An employee can enter into a written agreement to be paid pieceworker rates under the Horticulture Award. If an employee doesn't have a written agreement then they can't be a pieceworker. This agreement has to be genuinely made without coercion or duress. A pieceworker isn't guaranteed a minimum hourly or weekly rate that applies to the type of work they do, or the national minimum wage. The piecework rate has to allow the average competent employee to earn at least 15% more per hour than the relevant minimum hourly rate in the award.[1] Casual employees also get a casual loading.
The applicant indicated he wasn’t aware of the relevant classification or with the provisions of the award. The Tribunal put to him that the minimum hourly rate under the lowest classification would have been around $17 an hour. The Tribunal put to the applicant that because he was a casual employee he should have been paid a casual loading of 25 per cent. The Tribunal discussed with the applicant his concerns that, based on his evidence about the hours he worked, the time it took him to pick bins, and his pay slips it appeared the applicant had been significantly underpaid. Where relevant the applicant’s evidence about this issue is discussed further below.
Has the applicant carried out the requisite specified work in regional Australia?
Clause 417.211 requires, among other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia (whether on a full-time, part-time or casual basis) for a total period or periods equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111. The applicable instrument is IMMI 16/087.
Did the visa applicant previously hold a subclass 417 visa?
The Tribunal is satisfied that the visa applicant has previously been a holder of a subclass 417 visa based on the Department’s Movement Details.
Has the applicant carried out the requisite specified work in regional Australia?
‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111. The applicable instrument is IMMI 16/087.
The applicant gave evidence that he completed the work fruit picking in South Australia. On the evidence before it, the Tribunal accepts his evidence as credible and accepts that he undertook the work as claimed.
The Tribunal is satisfied that the work conducted by the visa applicant may be described as the harvesting of fruit crops (2(b)(i)A) as specified in that instrument.
The Tribunal is also satisfied that the visa applicant carried out all of the work within permissible postcodes that are set out in the Schedule of IMMI 16/087.
Therefore the Tribunal find that the visa applicant meets cl.417.211(5)(a).
Has the visa applicant conducted work (whether on a full-time, part-time or casual basis) that was the equivalent of at least 3 months’ full-time work?
Under Departmental policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed generally 35 to 40 hours/week, comprising 7 to 8 hours of work each day. Part-time and casual work is also said to be acceptable, but the sum total of the work performed needs to equal 3 months full-time work.
On his application form the applicant declared he undertook specified work from 07/06/2016 to 20/09/2016 (121 days). He told the Tribunal that he worked on casual basis five to six days per week and that some weeks he worked seven days a week.
The Tribunal is satisfied, based on the applicant’s evidence that he worked in excess of the required period of 88 days. Therefore the Tribunal is satisfied that the visa applicant meets cl.417.211(5)(b).
Was the visa applicant remunerated in accordance with relevant Australian legislation and awards?
According to the Department’s policy guidelines, “the remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history. It further states that “in the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted.”
Horticultural Award
The applicant provided the Tribunal with a Piecework agreement between the visa applicant and The Farm High Way. It states that that the piecework agreement was entered into under clause 15 of the Horticultural Award 2010 [MA00028].
Clause 15 of the Horticultural Award 2010 deals with pieceworkers. It provides that the pieceworker rate fixed by agreement between the employer and the employee must enable the average competent employee to earn at least 15% more than the minimum hourly rate under the relevant classification. It further provides that an employee on a piecework rate will not be entitled to ordinary hours of work and rostering, overtime and meal allowance. It states that the calculation of piecework rates for casual employees will include the casual loading and that the piecework agreement must be in writing and signed by both parties.
The award also includes classification levels. Level 1 relevantly includes performing general labouring duties, sorting, packing or grading of produce where this require the exercise of minimal judgment as well as fruit or vegetable picking.
In accordance with the award in force at the relevant time, the minimum hourly rate is $17.29 per hour on 8 June 2016 increasing to $ 17.70 on 1 July 2016. For a full-time worker this would result in a weekly pay rate of $656.90. In this case the applicant was a casual worker.
Clause 10.4(b) of the Horticulture Award 2010 requires that casual workers be paid a loading of 25%. This means, under this award, a casual worker working from the period of 8 June 2016 should have been paid at a rate of $21.61 per hour on 8 June 2016 increasing to $22.13 per hour on 1 July 2016.
Clause 15.2 of the Horticulture Award 2010 requires that piece workers be paid an additional loading of 15%. That means the rate fixed by the piecework agreement must enable an casual employee of average capacity to earn an hourly rate of $24.4 on 8 June 2016.
Evidence about the applicant’s work
The terms of work that the visa applicant was engaged in for this work were those of a casual employee. The signed piecework agreement indicates that the applicant was employed as a casual employee.[2] This is consistent with the applicant’s evidence that if it was raining he would not work and, when there was no work, he was not paid. When there was no work he was not paid.
A workplace questionnaire completed by the applicant stated that he worked the Farm Highway between 8 June 2016 and 20 September 2016 six to seven days a week ‘casual hours’. He stated he worked 7-9 hours a day, 45 to 48 hours per week. He stated his employer provided him with a piece work arrangement. The applicant stated $130 was deducted from his wages for accommodation. His payslips also show that amounts were deducted for transportation. There is no written agreement documenting the deductions.
The applicant told the Tribunal he was paid between $200 and $400 dollars a week. He estimated his average wages were between $200-300 per week. He stated that he was paid on a weekly basis. The payment was made to his bank account. He had not provided bank statements evidencing these payments to the Tribunal but he indicated he could do so and the Tribunal accepts that he received payments in the amounts shown on the pay slips he provided to the Tribunal.
At the hearing the Tribunal discussed with the applicant that it was concerned that, having regard to his evidence about his hours of work and the pay slips he provided, that it appeared he had been underpaid. The applicant told the Tribunal, and the Tribunal accepts, that he was not aware he was being underpaid. The pay slips the applicant has provided show that he was paid amounts between $221.0 ‘gross pay’ per weeks and $482.60 per week. The applicant’s net pay was significantly lower because every week money was deducted from his pay for house fees ($130 per week) and transportation (transportation pick up fees varied from$18-$30 per week). In one week his net pay after tax and deductions is recorded as $38.30 cents.[3] According to the pay slips the applicant’s net pay after deductions was never more than $253.90. There are no pay slips for the month of June.
Before the Tribunal the applicant stated he worked five and half days a week or six days a week. There were some weeks when he worked seven days a week. On days when it was raining he did not work. The applicant told the Tribunal that on average he worked around 8 hours a day although later he stated this was five or six hours because he had breaks.
At the hearing the Tribunal raised with the applicant the discrepancy between his evidence to the Tribunal about his hours of work and his written evidence to the Department. As the Tribunal put to the applicant that in the workplace questionnaire he stated that he worked six to seven days a week, seven to nine hours a day, and 45 to 48 hours a week. On the evidence before it, the Tribunal considers it is likely that the applicant has understated his hours of work to the Tribunal and prefers the applicant’s evidence to the Department which indicates that he worked 6-7 days per week, 7-9 hours a day, 45-48 hours a week.
However, even if it were to be accepted that the applicant worked between five and six hours a day for five to six days per week, it still appears that he has been significantly underpaid. For example, the applicant’s gross pay was $221 from 05 September 2016 to 11 September 2016. Even if it were accepted that the applicant only worked five days a week for around five hours this week, his average hourly pay rate would have amounted to less than nine dollars an hour. The Tribunal considers that this is inconsistent with the applicant’s evidence that he was able to pick a bin of oranges in around an hour and he was paid $24-26 for doing so and the piecework agreement which states that the applicant was paid $26 per bin of large oranges and $24 per bin of oranges for small to medium trees.
While the Tribunal acknowledges that applicant claims to have been paid in accordance with the piece work agreement he has, the Tribunal is not satisfied that he was paid in accordance with the terms of this agreement. The Tribunal has considered the applicant’s evidence that he was slow at picking fruit. However, the applicant gave evidence it took him around one hour to pack a bin of oranges and the pay rate for picking a bin of oranges between $24 and 26 dollars (which is consistent with the piecework agreement he submitted to the Tribunal). The applicant also gave evidence it took around one and half to two hours for two people to fill a bin with mandarins and the payment for this was $85 per bin. This rate is not stated in the piecework agreement and nor do the pay slips the applicant has provided the Tribunal indicate that he was paid at this rate.
Having considered the payslips provided the applicant and his evidence about his hours of work, the Tribunal is not satisfied that the applicant was ever paid in accordance with the piece work agreement. The Tribunal has considered the applicant’s evidence that he agreed for deductions to be made to his wages for accommodation and transport. However, as the Tribunal put to the applicant that, even before the issue of deductions is considered, the applicant does not appear to have been paid in accordance with the written piecework agreement or the relevant award. Having considered his evidence about how long it took to pick bins, his hours of work, and the pay slips he has provided, the Tribunal is not satisfied that the applicant has been paid in accordance with piecework agreement he provided to the Tribunal or in accordance with Australian legislation and awards.
On the evidence before it, the Tribunal is not satisfied that the applicant was paid in accordance with the written piecework agreement he provided to the Tribunal and in accordance with Australian legislation and awards. As the Tribunal put to the applicant even if it accepted that he agreed to the deductions from his pay, it appeared he had been underpaid for the work he had done. The payslips provided by the applicant do not satisfy the Tribunal that the applicant was paid according to Horticulture Award as signed and agreed to in the piecework agreement. Accordingly, the Tribunal is not satisfied that the applicant was paid in accordance with the rates fixed by the piecework agreement or in accordance with the Horticultural award.
On the basis of the material provided, the Tribunal is unable to be satisfied that the applicant was paid in accordance with relevant Australian legislation and awards including the Horticultural Award 2010. Accordingly, the Tribunal finds that for his employment at The Farm Highway Pty Ltd the visa applicant was not paid in accordance with the relevant Australian legislation and awards. This means the visa applicant cannot meet cl.417.211(5)(c) of the Regulations.
The applicant impressed the Tribunal as a person who had worked hard in hope of satisfying the criteria for a second working holiday visa. On the evidence before the Tribunal, it appears that he has been underpaid and exploited. As a result and through no fault of his own, he cannot meet cl. 417.211 (5)(c) of the Regulations.
The Tribunal is aware of a case brought by the Fair Work Ombudsman in the Federal Court concerning the alleged underpayment of pieceworkers[4] and of reports concerning the exploitation of working holiday visa holders.[5] The Tribunal has sympathy for the applicant’s situation. Unfortunately the Tribunal has no discretion in this matter and, for the reasons given above, has no option other than to find that the applicant does not meet the criteria for the grant of this visa.
Therefore, the applicant does not satisfy cl.417.211(5).
DECISION
The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.
Frances Simmons
Member
[1]
[2] Tribunal file, folio 22.
[3] Tribunal file, folio 23
[4]
Key Legal Topics
Areas of Law
Immigration
Statutory Interpretation
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
Remedies
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