TSAI (Migration)

[2020] AATA 2802

TSAI (Migration) [2020] AATA 2802 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shu Chun TSAI

CASE NUMBER:  1814419

HOME AFFAIRS REFERENCE(S):          BCC2017/3851510

MEMBER:Tania Flood

DATE:9 June 2020

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 09 June 2020 at 11:30am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – plant and animal cultivation – piece rate payments – working day in the agricultural industry – remuneration in accordance with relevant Australian legislation and awards – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 3 May 2018 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 19 October 2017. 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. On 21 November 2017 the Department requested the applicant to provide more information in relation to her application within 28 days of the date of the request.  The visa was refused on the basis that the requested information was not provided, and the delegate could not be satisfied that the applicant had carried out specified work in regional Australia as the holder of a subclass 417 Working Holiday visa.  The delegate concluded that the applicant did not meet the requirements under cl.417.211 of the Regulations.

4. In the application for the Working Holiday visa the applicant declared that she undertook work with two employers in the regional postcode areas 4670 and 2456.

5. In a Form 1263 it is indicated that she picked berries for Noble Halo Pty Ltd in Point Cook, NSW (postcode 2456) for 55 days from 16 August 2017 to 19 October 2017.

6. In a further Form 1263 it is indicated that she picked various vegetables for L&M Grand Atelier Pty Ltd in the regional postcode area 4670 for 35 days from 1 July 2017 to 14 August 2017.

7. She produced a single payslip from both employers at the time of application.

8. In response to a request by the Tribunal for information made on 15 April 2020 the applicant provided bank and tax records, further copies of payslips from both employers, a signed piecework agreement with L&M Grand Atelier Pty Ltd and a signed employment agreement with Noble Halo Pty Ltd.

9. She declared that she worked 6-8 hours per day; 5-6 days per week; 30-36 hours per week for Noble Halo Pty Ltd.

10. She declared that she worked 6-9 hours per day; 5-6 days per week; 35-40 hours per week for L&M Grand Atelier Pty Ltd.

11. Additionally, she produced a statutory declaration declaring that she worked for L&M Grand Atelier Pty Ltd from 3 July 2017 to 13 August 2017 and received cash payments during this period. 

12. A submission made on the applicant’s behalf at the same time states that the applicant worked on two farms in regional areas during her initial working holiday visa stay.  She worked for L&M Grand Atelier Pty Ltd from 3 July 2017 to 13 August 2017 in Bundaberg (4670) and Noble Halo Pty Ltd from 16 August 2017 to 19 October 2017 in Coffs Harbour (2456).  It is submitted that the applicant received cash payments from L&M Grand Atelier Pty Ltd.  Payslips from this employer indicate that she made a sum of $468.88 PAYG withholding tax payment.  However, the applicant’s tax return lodgement details show inconsistency as only a total of $96 PAYG withholding tax was made by her employer under two different business entities. 

13. The applicant appeared before the Tribunal on 28 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

14. The applicant was represented in relation to the review by her registered migration agent.

15. The applicant’s oral testimony to the Tribunal about her employment under her first working holiday visa was largely consistent with her documentary evidence.  In addition, she confirmed the following to the Tribunal:

16. The availability of picking work was subject to weather conditions and the readiness of fruit to be picked.  She said that at times there was little or no work to be done and she described herself as being a medium to slow picker compared to her fellow workers.   The applicant said that her picking ability largely accounts for the low earnings she received in some weeks.

17. As requested, in a post-hearing submission dated 4 June 2020, the applicant attached a copy of a piecework agreement signed with Noble Halo Pty Ltd on 15 August 2017.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant had carried out specified work in regional Australia for a period of at least 3 months as the holder of a subclass 417 visa and been remunerated in accordance with relevant Australian legislation and awards.  

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

20. 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 Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020.

21. Relevant to this case “regional Australia” includes Queensland and New South Wales postcodes 4670 and 2456 and “specified work” includes:

    Plant and animal cultivation

    a.    Harvesting and/or packing of fruit and vegetable crops;

    b.    Pruning and trimming vines and trees;

    c.     General maintenance crop work;

    d.    Cultivating or propagating plants, fungi or their products or parts;

    e.    Immediate processing of plant products;

    f. Maintaining animals for the purposes of selling them or their bodily produce, including natural increase;

    g.    Immediate processing of animal products including shearing, butchery, packing and tanning, and not including secondary processing;

    h.    Manufacturing dairy produce from raw material.

22. 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.

23. 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 award 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.

24. Based on the documentary evidence before it the Tribunal is satisfied that the applicant performed work picking fruit and vegetables in two locations in Queensland and New South Wales in 2017.  The Tribunal is satisfied that she has completed work which meets the definition of “specified work” in locations which are specified as “regional Australia” whilst holding a working holiday visa.

25. In considering whether the applicant has completed a total period of 3 months of such work the Tribunal understands that the duration of a working day in the agricultural industry generally may vary from day to day and will be dictated by a range of factors including the availability of work and weather conditions.  As such the Tribunal accepts that a typical working day in this industry may not always be 7 to 8 hours as in other industries.  The Tribunal further accepts that the pattern of work may also be dependent on a range of factors including environmental factors.  The Tribunal is satisfied therefore that the requisite period should be calculated flexibly with this in mind.

26. The information before the Tribunal indicates that the applicant worked an average of between 6 and 9 hours per day for 5 to 6 days per week.  Based on the available evidence the Tribunal is satisfied that she worked a total of 35 days for L&M Grand Atelier Pty Ltd and a total of 55 days for Noble Halo Pty Ltd.  The Tribunal accepts she worked for at least the equivalent of 3 months in full-time employment.

27. The Tribunal is satisfied that the applicant meets cl.417.211 (5) (a) and (b) of the Regulations.

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

28. 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”.

29. The relevant award for the applicant’s work is the Horticulture Award 2010 which lists the minimum hourly rate of payment.  The award also 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.  At the time of the applicant’s employment the base minimum hourly rate of payment was $18.29 and as she was subject to piecework agreements she ought to have had the ability to earn approximately $21.00 per hour.

30. The Tribunal has carefully examined the payslips, employment agreements, piecework agreements and the applicant’s bank account records as well as her claims in respect of the work she completed.  Relevantly, the payslips provided show earnings which fluctuate from a low of $225 per week to a high of $767 per week for her work with both employers.  While it is evident that her wages at the lower end of this range fall below what an average competent employee ought to be able to earn under the relevant award the Tribunal finds it plausible that this is due to her speed of picking and other factors impacting the availability of work to be done rather than her being underpaid for the work performed.

31. The Tribunal considers that overall, the evidence, including the terms of the employment contracts and piecework agreements and her declared competency at picking, support that she was remunerated appropriately.  Having regard to these factors and taking into account the Department’s policy guidelines mentioned above, the Tribunal is satisfied that the applicant was remunerated for the work she performed in accordance with relevant Australian legislation and awards.  Therefore, the Tribunal is satisfied that the applicant meets cl.417.211 (5) (c) of the Regulations.

32. In view of the above findings, the applicant satisfies cl.417.211 of the Regulations and therefore meets the criteria for the grant of the visa.

    DECISION

33. 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 of Schedule 2 to the Regulations.

    Tania Flood

    
    

    Member