lee (Migration)

[2018] AATA 1678

lee (Migration) [2018] AATA 1678 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jungjin lee

CASE NUMBER:  1707786

DIBP REFERENCE(S):  BCC2016/2577166

MEMBER:Tania Flood

DATE:22 May 2018

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 22 May 2018 at 11:25am

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Remuneration for work in regional Australia – 3 months of full-time work completed – Piecework agreements produced retrospectively – Remuneration less than the minimum hourly award rate – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 Schedule 2 cl 417.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 August 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(5).

3. On 10 November 2016, the applicant was requested by the department to provide further evidence that he had completed three months specified work in regional Australia and had been appropriately remunerated for the work in accordance with relevant Australian legislation and awards. 

4. On 22 August 2016 and 10 December 2016 the applicant provided further information including a completed Form 1263 employment verification form, copies of payslips and a PAYG summary from Tinta Mont Pty Ltd.

5. Having considered all of the information provided the delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(c) of the Regulations because the delegate was unable to be satisfied that he had been remunerated for specified work in accordance with relevant Australian legislation and awards.

6. The applicant appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 417.211(5) requires among other things that at the time of the visa application the applicant had carried out specified work in regional Australia for a total period of at least 3 months full-time work as the holder of a Working Holiday visa and was remunerated for that work in accordance with the relevant Australian legislation and awards.

9. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111.

10. Relevant to this case “regional Australia” includes Queensland postcode 4510 and ‘specified work’ includes:

    a.plant and animal cultivation

    i.the harvesting and/or packing of fruit and vegetable crops

    ii.pruning and trimming vines and trees

    iii.general maintenance crop work

    iv.cultivating or propagating plants, fungi or their products or parts

    v.immediate processing of plant products

    vi.maintaining animals for the purpose of selling them or their bodily produce including natural increase

    vii.immediate processing of animal products including shearing, butchery, packing and tanning

    viii.manufacturing dairy produce from raw material

11. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. The expression, ‘3 months’ is not defined in the Regulations; however, Department guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full time work for that employer, that region and that industry.

12. From 1 December 2015 onwards all specified work performed is required to have been paid in accordance with Australian workplace law.  Where an employee gets paid by the piece the Fair Work Ombudsman’s website provides guidance on piece rate and commission payments.  Relevantly, it states:

    An employee can be paid piece rates when:

    ·An award or registered agreement allows for piece rate payments

    ·The employee isn’t covered by an aware or registered agreement and they get a pay rate based on how much work they do.

    There has to be a written and signed piecework agreement setting out the pay rate per piece and how it is measured.  An employer has to keep the agreement as part of their records and give a copy to the employee.

    If there is no signed piecework agreement, the employee is not considered a pieceworker and must get the minimum hourly or weekly rate in the award for the type of work they do.

13. Based on the documentary evidence before it, including the completed Form 1263 provided by the applicant, the Tribunal is prepared to accept he performed ‘specified work’ as a strawberry picker in Caboolture in ‘regional Australia’.   The completed Form 1263 shows that he worked a total of 90 days between 25 April 2016 and 31 July 2016.  The applicant told the Tribunal that he worked thirteen days per fortnight from either 7am to 1pm or 7am to 8pm.  The Tribunal is satisfied, based on his evidence that the applicant worked for at least 3 months in full-time work.

14. The Tribunal is satisfied that the applicant meets cl.417.211(a) and (b) of the Regulations.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards?

15. 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”.

16. Based on the payslips provided by the applicant the Tribunal is satisfied he received payments for piece work.  Prior to the Tribunal hearing he produced copies of Piecework Agreements between himself and Tinto Mont Pty Ltd and Louise Mont Pty Ltd.  The agreements state that the piecework agreement was entered into under clause 15 of the Horticultural Award 2010 (MA00028). 

17. 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 an 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.

18. In accordance with the award in force at the relevant time, the minimum hourly rate was $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 did not know if he was a casual worker and the piecework agreements do not specify whether he was employed as a casual/part-time or full-time employee.

19. At the Tribunal hearing the applicant was asked how many employers he had worked for in regional Australia.  He replied that he only worked at the one location but that he understands his employer underwent a change of name as evidenced by his payslips.

20. At the Tribunal hearing the applicant was asked why he had only produced the piecework agreements just prior to the hearing.  He said that he lodged his application for a second working holiday visa himself without any professional help.  He said that he received a request from the Department to provide more information about his employment but he did not fully understand the contents of the letter he received.  He said he provided the department with certain documents including copies of payslips but he only realised he had been asked to provide the piecework agreement after his application was refused and he re-read the letter.

21. The Tribunal asked the applicant when he received the piecework agreements and he said it was about five or six months ago when he commenced working.  He confirmed that he signed the documents before he started working.

22. The Tribunal put it to the applicant that the dates on his payslips indicate he was first employed by Tinta Mont Pty Ltd and later by Louise Mont Pty Ltd but that the piecework agreements he has produced indicate he entered into the agreement with Louise Mont Pty Ltd on 25 April 2016 and with Tinta Mont Pty Ltd on 20 June 2016.  The Tribunal put it to the applicant that it could form the view that the piecework agreements he has provided were produced for the purpose of this review and were not in place at the time of his employment as required by law.  The applicant responded that he doesn’t know why the agreements are dated in that order. 

23. The Tribunal has serious concerns that the piecework agreements have been produced retrospectively accounting for the error with the commencement dates.  In any event on the available evidence the Tribunal is not satisfied that the applicant was paid in accordance with the terms of these agreements which make it clear his employment must enable him, as an average competent employee, to earn at least 15% more than the minimum hourly rate. 

24. The complete set of payslips provided by the applicant after the Tribunal hearing, show that he was paid amounts of between $43.25 and $512.40 gross per week.  More often than not his gross earnings were in the range of $200 to $400 per week.  He confirmed that no deductions were taken from his pay for accommodation or other expenses. 

25. As noted above the applicant told the Tribunal that he worked thirteen days per fortnight with one day off.  He said that his hours of work ranged from five or six hours per day to thirteen hours per day.  Based on the payslips he provided, the applicant’s highest wage was $512.40 for the week commencing 23 May 2016.  Even if he worked the minimum number of hours in the range described, that being five hours a day for six days in that week his equivalent hourly rate of pay would have amounted to less than the minimum hourly award rate.  The situation is more pronounced when his earnings at the lower end of the scale are taken into consideration.

26. The Tribunal discussed this with the applicant at hearing and put it to him that his piecework agreements provide that he be enabled to earn at least 15% more per hour than the minimum hourly rate prescribed in the award.  The applicant stated that it rained a lot during the time he was employed and there were not a lot of strawberries to pick and this might have affected his pay. 

27. Even taking into account the applicant’s response, having considered the payslips provided by the applicant and his evidence about his hours of work the Tribunal is not satisfied that he was paid in accordance with the piecework agreements and relevant Australian legislation and awards including the Horticultural Award 2010. 

28. The applicant appears to have worked hard but on the evidence before the Tribunal, through no fault of his own, he does not meet cl.417.211(5)(c) of the Regulations. The Tribunal has no discretion in this matter and for the reasons outlined above finds that he does not meet the criteria for the grant of the visa.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Tania Flood

    
    

    Member