Shale (Migration)

Shale (Migration) [2017] AATA 616 (19 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Chloe Louise Shale
CASE NUMBER:  1619672
DIBP REFERENCE:  BCC2016/2759840
MEMBER:Rosa Gagliardi
DATE:19 April 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:
·cl.417.211(5) of Schedule 2 to the Regulations.

Statement made on 19 April 2017 at 1:42pm

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CATCHWORDS

Migration – Working Holiday (Temporary)(Class TZ) visa – Subclass 417 (Working Holiday) – Remuneration – Paid by piece rate basis – Above award hourly rate – Applicant remunerated for work in accordance with relevant Australian legislation and awards
LEGISLATION
Migration Act 1958
, s 65

Migration Regulations 1994
, Schedule 2, cl 417.211(5)

Horticulture Award 2010

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 4 November 2016 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 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).
The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5). Specifically, the delegate was not satisfied for the purposes of cl.417.211(5)(c), that the applicant had been remunerated for the work in accordance with relevant Australian legislation and awards.
The applicant appeared before the Tribunal on 28 February 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has submitted evidence that she undertook the following specified work with Cavallo, Ilario (ABN: 93970577154) from 13 April 2016 to 28 July 2016 in the 3505 regional postcode area. The applicant responded to the department’s request for information, including details of the payslips paid by One Big Family – ABN:93970577154: showing that the applicant was paid on a 6 day basis, with varying amounts from $55.45 in one instances but mostly above $174.00.
The details were also provided for Mildura Fruit Company starting on the week ending

26 June through to week ending 24 July 2016. Net pay has been between $526.92 and $812.40. The department noted that the information provided by Mildura Fruit Company was adequate for the purposes of cl.417.211(5). There were concerns, however, that the information provided in respect of One Big Family was insufficient to ascertain whether the applicant was paid in accordance with relevant Australian legislation and awards. At the time of application the applicant supplied a Job Description Form stating:
·The employer is Larry Cavallo and through Larry Cavallo as a Contractor for MFC
·That she started on 13 April 2016 and finished on 28 July 2016
·Worked 6 days a week for Larry Cavallo and 5 days a week for Mildura Fruit Company contracted through Larry Cavallo
·Worked full time, 7-8 hours a day
·The job title was Vine Piece Work for Larry Cavallo, Casual Production Worker for MFC contracted through Larry Cavallo
·Was paid cash by Larry Cavallo and by Bank Account by Mildura Fruit Company contracted by Larry Cavallo.
The Tribunal requested that the applicant provide additional information from her employer, indicating: how many vines an average competent employee could roll per day and how the employer calculated the piecework rates. On 6 April 2017 the employer wrote to the Tribunal stating that the applicant had been paid on a piece rate basis under the Horticultural Award 2010 and the rates in line with Australian Dried Fruit Australia 2016 whilst working for One Big Family. Under the Australian Dried Fruit Australia the award rate for the job that the applicant was performing was $0.38 cents per vine. The applicant was, however, paid 0.55 cents per vine which is above the recommended guidelines. The applicant worked on a casual basis with a standard working day being 6 to 8 hours a day.
The applicant’s employer also stated that a competent person could undertake work with vines from 50 as a new starter to 400 vines per day for someone with greater technique.
As the applicant stated at hearing, given her physique she was not able to keep up pace with the larger male workers with physical strength. Her employer states that for the majority undertaking the work it is the first time they have worked or even performed physical labour so the work takes getting used to.
Clause 417.211(5) requires that if the applicant has previously been in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia for a total period of at least 3 months as the holder of that visa. In addition, the applicant must also have been remunerated in accordance with relevant Australian legislation and awards.
The applicant’s piecework agreement with One Big Family, dated 13 April 2016, indicates that it was made pursuant to clause 15 (Pieceworkers) of the Horticulture Award 2010, which provides that:
15.1 An employer and a full-time, part-time or casual employee may enter into an agreement for the employee to be paid a piecework rate. An employee on a piecework rate is a pieceworker.
15.2 The piecework rate fixed by agreement between the employer and the employee must enable the average competent employee to earn at least 15% more per hour than the minimum hourly rate prescribed in this award for the type of employment and the classification level of the employee. The piecework rate agreed is to be paid for all work performed in accordance with the piecework agreement.
15.3 The calculation of piecework rates in clause 15.2 for casual employees will include the casual loading prescribed in clause 10.4(b).
15.4 An agreed piecework rate is paid instead of the minimum wages specified in clause 14—Minimum wages.
15.5 The following clauses of this award do not apply to an employee on a piecework rate:
(a) Clause 22—Ordinary hours of work and rostering;
(b) Clause 24—Overtime;and
(c) Clause 24.3—Meal allowance.
15.6 The employer and the individual employee must have genuinely made the piecework agreement without coercion or duress.
15.7 The piecework agreement between the employer and the individual employee must be in writing and signed by the employer and the employee.
15.8 The employer must give the individual employee a copy of the piecework agreement and keep it as a time and wages record.
15.9 Nothing in this award guarantees an employee on a piecework rate will earn at least the minimum ordinary time weekly or hourly wage in this award for the type of employment and the classification level of the employee, as the employee’s earnings are contingent on their productivity.
15.10 For the purposes of the NES:
(a) The base rate of pay for a pieceworker is the base rate of pay as defined in the NES.
(b) The full rate of pay for a pieceworker is the full rate of pay as defined in the NES.
For the purposes of clause 15.3, the casual loading prescribed in clause 10.4(b) is 25%.
From 1 July 2015 to 30 June 2016 the minimum hourly rate prescribed by the award for the type of employment and the classification level of the applicant (Adult rate of pay for casual Level 1 employee with no experience in the horticulture industry) was $21.61 or $24.20 with the 15% piecework loading.
The piecework rate is calculated by dividing the daily wage rate by the vine pulling out rate or the vine rolling on rate that an average competent pieceworker can achieve to determine the piecework rate. The rate for an average competent pieceworker may vary depending upon things like weather conditions; ripening process; type of bin; type of picking; size or density of trees/plants; etc.
The Tribunal considers that given the applicant’s physique, a beneficial view of the work a “competent person” can perform should be applied in her case, being 50 per day in line with the evidence provided by Mr Cavallo.
Hence, an average competent worker working with 50 vines per day at 0.55 cents per vine would be paid $27.50 per hour (assuming that person worked for 6 hours, the minimum

Mr Cavallo offered in the range of hours worked).
Therefore the piecework rates are above the award hourly rate of $24.20 with the 15% piecework loading. Accordingly, the piecework rate fixed by agreement between the employer and the employee enables an average competent employee to earn at least 15% more per hour than the minimum hourly rate prescribed in the award for the type of employment and the classification level of the employee.
On this basis, the Tribunal is satisfied that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards and meets cl.417.211(5)(c) and cl.417.211(5).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.
DECISION
The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:
·cl.417.211(5) of Schedule 2 to the Regulations.
Rosa Gagliardi

Member

[2017] AATA 616

19 April 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies