TSAI (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The central dispute concerned whether the applicant had fulfilled the requirement of undertaking specified work in regional Australia for at least three months and had been remunerated in accordance with relevant Australian legislation and awards.

The Tribunal was required to determine if the applicant had performed the requisite specified work in regional Australia, as defined by the Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020. This involved assessing whether the work undertaken fell within categories such as plant and animal cultivation, and whether the locations met the definition of "regional Australia." Furthermore, the Tribunal had to ascertain if the applicant had been paid in accordance with Australian workplace law, particularly concerning piece-rate payments, from 1 December 2015 onwards.

The Tribunal reasoned that the definition of "specified work" included activities like harvesting fruit and vegetables, pruning trees, and maintaining animals for sale. It also noted that "regional Australia" encompassed specific postcode areas in Queensland and New South Wales. Regarding remuneration, the Tribunal referred to guidance from the Fair Work Ombudsman, which stipulates that piece-rate payments are permissible only if an award or registered agreement allows for them, or if there is a written and signed piecework agreement detailing the pay rate per piece. In the absence of such an agreement, an employee must receive the minimum hourly or weekly rate. The Tribunal concluded that the applicant had satisfied the criteria under clause 417.211 of the Regulations.

Consequently, the Tribunal remitted the application for a Subclass 417 (Working Holiday) visa for reconsideration, with a direction that the applicant met the criteria specified in clause 417.211 of Schedule 2 to the Regulations.