Lin (Migration)

[2017] AATA 648

Lin (Migration) [2017] AATA 648 (28 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tzu- Yang Lin

CASE NUMBER:  1700506

DIBP REFERENCE(S):  BCC2016/2767828

MEMBER:Meena Sripathy

DATE:28 April 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 28 April 2017 at 3:16pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – cl 417.211 – Remuneration for three months specified work in regional Australia – Absence of a piecework agreement – Piecework basis for grape picking work – Minimum pay rates – Underpayment of temporary visa holder workers

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, 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 9 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).

2. The applicant applied for the visa on 21 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because insufficient evidence was provided by the applicant and the delegate was unable to verify the claimed employment to be satisfied that it was completed as claimed.

4. The applicant appeared before the Tribunal on 31 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chia Hua Shih, his partner who also worked with him at the same places of employment and was the subject of her own review, also before the same Tribunal (case number 1700508). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant carried out the requisite specified work in regional Australia?

6. 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 16/041.

7. The applicant claimed in his application that he undertook specified work with QV Contracting ABN 22606952774 from 29 January 2016 to 1 March 2016 (30 days) in postcode area 3549 and with AS Botak [ABN 21610824041] from 28 March 2016 to 26 April 2016 (26 days) also in postcode area 3459 and with Ezyrol Trading [ABN 84165223932] from 9 May 2016 to 7 August 2016 (43 days) in 2710 postcode area.

8. Upon request for further information by the Department, the applicant provided completed and signed Forms 1263 for each of the claimed employers; an employment contract for Ezyrol Trading, WHM Specified Work Questionnaire for each of the claimed employments, payslips from Ezyrol for a majority of the period claimed and payslips from AS Botak for a part of the period claimed. 

9. The delegate’s decision record indicates that a verification call to Ezyrol confirmed the applicant’s employment there, however contact was not able to be made with the other two employers and on this basis the delegate found that the applicant’s employment claims with these employers could not be verified. 

10. Before the Tribunal the applicant provided the following further evidence:

    ·Payslips from QV Contracting and AS Botak and Ezyrol Trading for the full  periods of claimed employment.

    ·Letter from Ezyrol Trading confirming that the applicant worked for them as a meat processor in Deniliquin from 9 May 2016 to 7 August 2016 for 43 days.

    ·Completed and signed Form 1263 referring to all three periods of claimed employment.

    ·Bank statements for the applicant for the periods December 2015 to August 2016.

    ·Photos of applicant at places of claimed employment, including meat factory and grape vineyards.

    ·Income tax documents for 2015/2016 indicating payment summaries from each of the claimed employers and amounts of gross payments earned.

11. In his oral evidence at the hearing, the review applicant told the Tribunal he currently lives in Deniliquin, NSW with his girlfriend, Ms Shih. He arrived in Australia on 28 August 2015 on a 417 visa.  He confirmed his periods and places of employment as claimed in the application. He obtained the first job at QV Contracting from an advertisement he found on the internet, through a Facebook community chat site.  It involved cutting and packing grapes and was in Robinvale, Victoria.  He was in Melbourne at the time and travelled to Robinvale by train in January 2016.  He was picked up at the station and taken to the farm where he was provided with accommodation at a cost of $90 per week. He stayed here until 30 April 2016. 

12. The applicant described the work he performed in this job. They worked in teams of two, one cutting the grapes from the vines and the other packing them in packets. 10 packets went into one box.  They were transported daily to the farms and worked from 7 am – 3 or 4 pm, 6 days a week. He was paid on a piecework basis for this first job.  He cannot recall signing a piecework agreement.  Regarding the second job, this was also packing grapes but in town. He worked 7.30-3.30 and was paid on a piecework basis.  The third job was at a slaughterhouse in Deniliquin. He worked in the boning room from 5 am to 2 pm.  He was paid $22 per hour. 

13. The Tribunal discussed with the applicant the issue in his case appears to be that there is no evidence he signed a piecework agreement and the rates and amounts of pay indicated on his payslips is very low, and do not reflect that he worked full time or was remunerated for his work in accordance with Australian legislation and awards.  It put to him that in the absence of a piecework agreement, his employers are not permitted by law to pay him other than an hourly rate and the pay he received does not reflect the minimum hourly rate according to the relevant award. The applicant said that when he came to Australia he was not familiar with the environment here and did not know the rules.  He wanted to find work and save money to tour Australia. He indicated he may have been paid a low amount because he was working very slow at first as he was not familiar with farm work.  He was not familiar with minimum pay rates so was unaware of whether he was paid in accordance with Australian law.

14. Ms Shih confirmed the employers and periods employed as claimed in her application.  In response to the issue of whether they were paid in accordance with Australian legislation and awards, she stated that they were not familiar with the work at the beginning and may not have been doing it properly and therefore they were working very slowly.  She also indicated that sometimes there were not as many grapes to pick and this also affected how much they earned.

15. The Tribunal has carefully considered the evidence before it, including the payslips, employment verification forms, bank statements and the applicant and his witness’ oral evidence and makes the following findings.  It accepts on the basis of the applicant’s oral evidence, completed Forms 1263 and payslips that the applicant carried out work as claimed between 21 January 2016 and 1 March 2016 and 28 March 2016 to 26 April 2016 picking grapes for two different employers in Robinvale, Victoria; and from 9 May 2016 to 7 August 2016 in Deniliquin, NSW at a meat processing factory.  It accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcodes 3549 and 2710 declared are included as specified postcodes. The Tribunal is also satisfied that the bank statements submitted shows withdrawals of funds in the vicinity of the claimed employment and together with the photos, confirm that the applicant was present in these areas. Accordingly he meets the requirements of cl.417.211(5)(a).

16. The issue in the present case is whether the applicant has carried out the equivalent of 3 months full time work, remunerated in accordance with Australian legislation or awards.  The applicant claims, and the payslips indicate, that he was paid on a piecework basis for the grape picking work in Victoria. No evidence of a signed piecework agreement has been provided however, and the applicant told the Tribunal in his oral evidence that he does not recall signing one. Information obtained from the Fair Work Ombudsman provides that 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.[1]  While the applicant told the Tribunal that he worked full time hours, 6 days a week, the amounts of pay indicated in his payslips for the claimed periods do not appear to reflect that. 

    [1] >

    Having closely examined the payslips provided for the grape picking work, it is clear that the applicant was paid well below the minimum hourly rate and received well below the minimum weekly wage, which for Level 1 under the Horticulture Award is $672.70 ($17.70 per hour) [2] The payslips from QV Contracting indicate he was paid as little as $73.50 in one week and at most $338.10 in another, which does not reflect full time work remunerated in accordance with Australian legislation and awards.  With AS Botak, he was paid between $414.50 and $622.50 per week, which also does not reflect full time work remunerated in accordance with Australian legislation and awards.  On the basis of the information he provided, if he worked 38 hours a week he was effectively paid between $2 -$9 per hour at QV Contracting and  $11-$16 per hour at AS Botak, both being well below minimum hourly rate of $17.70.

    [2] The weekly wage rate level 1 under the Horticulture Award is $672.70: >

    The Tribunal has considered whether the applicant can satisfy the requirement of 3 month full time work on the basis solely of his employment at Ezyrol Trading.  It accepts this employment was paid at an appropriate hourly rate.  However, the payslips indicate that most weeks there he was not working full time, but rather between 20- 36 hours, with only 2 weeks indicating a 38 hour week.  The Form 1263 and letter from the employer also indicate that he completed only 43 days in this employment. Therefore on the evidence before it, it is unable to be satisfied that he completed at least 3 months full time work at Ezyrol Trading. 

17. For the reasons given above, the Tribunal cannot be satisfied that the applicant worked at least three months full time or that he was remunerated in accordance with Australian legislation and awards in respect of the grape picking work and he does not meet cl.417.211(5)(b) and (c). 

18. Therefore, the applicant does not satisfy cl.417.211(5). 

19. In reaching this conclusion, the Tribunal is aware of reports that there are widespread issues of underpayment and exploitation of temporary visa holder workers particularly in the context of the seasonal fruit picking industry, and there has been scrutiny of this by relevant government bodies,[3] including a test case of workplace laws on piece rates currently underway before the Federal Court.[4] However in the present case, though it accepts the applicant carried out the work as claimed, the Tribunal has no option but to find that the applicant does not meet the criteria for the grant of the visa for the reasons given above. Unfortunately the Tribunal has no discretion to make any other decision, despite no wrongdoing on the part of the applicant.

    [3] >

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

    Meena Sripathy

    
    

    Member