Pagliarani (Migration)

The Administrative Appeals Tribunal considered an application for a Working Holiday (Temporary) (Class TZ) visa, Subclass 417, made by Mr. Pagliarani. The core of the dispute concerned whether Mr. Pagliarani had satisfied the requirement of undertaking "specified work" in regional Australia for a minimum of three months, and crucially, whether he had been remunerated for this work in accordance with relevant Australian legislation and awards.

The Tribunal was required to determine if the work undertaken by Mr. Pagliarani, specifically picking blueberries for Western Berry Company and LN Prompt Services Pty Ltd in postcode 6507, constituted "specified work" as defined by the Migration (LIN20/103: Subclass 417 (Working Holiday) visa – Regional Australia and Specified Work) Instrument 2020. Furthermore, the Tribunal had to assess whether the remuneration received under a piece-rate agreement met the legal requirements, particularly in light of departmental guidelines suggesting that three months equates to 88 days of work and that, from December 2015 onwards, all specified work must be paid in accordance with Australian workplace law.

The Tribunal noted that "specified work" includes the harvesting and packing of fruit and vegetable crops, and that "regional Australia" encompasses postcode 6507. While the applicant provided evidence of his work and remuneration, including a piecework agreement, payslips, and bank statements, the Tribunal focused on the remuneration aspect. It acknowledged that piece-rate payments are permissible under certain conditions, as outlined by the Fair Work Ombudsman, but the ultimate determination of compliance with Australian workplace law for the specific piece-rate arrangement was central to the decision.

Ultimately, the Tribunal decided to remit the application for reconsideration by the Minister. The direction was that the applicant was to be considered as meeting criterion cl 417.211(5) of Schedule 2 to the Regulations, implying that the remaining criteria for the Subclass 417 visa should be assessed.