What is work?
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law 30 July 2021
The terms ‘work’ and ‘employed’ have chameleon like qualities. The Australian Bureau of Statistics (ABS) defines ‘employed’ as working at least one hour per week and working full time as working for 35 hours per week. ‘Employed’ for skilled visas is defined as 20 hours per week. The Fair Work Act leans towards 38 hours per week for full-time, although not conclusively. Other parts of the PAM refer to full time as 35 hours per week.. The word ‘work’ in Reg 1.03, “means an activity that, in Australia, normally attracts remuneration”. But apart from that, the word ‘work’ is undefined. So that for the subclass 482 visa it leaves it open as to whether work experience is meant to be full time or whether part-time work will suffice.
Here is the background to that brief summary
The ABS in its website has a dissertation called ‘Labour Force Explained’ see https://www.abs.gov.au/websitedbs/d3310114.nsf/home/labour+force+explained
It states:
“The ABS defines people as 'employed' if they work one hour or more in the reference week. The vast majority of part-time employed people work more than 15 hours.
The 'one hour rule' is used internationally and allows employment figures to be compared with other countries. It has been used in Australia since the Labour Force Survey began, enabling comparisons to be made over a long period of time.”
The ABS goes on to say:
“Full-time and part-time employment
The ABS classifies people as employed full-time if they worked, or usually work, 35 or more hours in the survey reference week. This includes people who were employed in two or more part-time jobs and in total worked more than 35 hours.
Part-time workers are those who worked and usually work less than 35 hours in the survey reference week.
Changes in full-time and part-time employment reflects people starting and finishing jobs (with various hours of work), but also ongoing variation in the hours worked by employed people remaining in the same jobs. It is important to remember this when looking at the ‘net’ change.”
The Fair Work Act 2009 (Cth) in s20 states:
“Meaning of ordinary hours of work for award/agreement free employees
Agreed ordinary hours of work
(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.
If there is no agreement
(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
(a) for a full-time employee--38 hours; or”
Awards and enterprise agreements can define what is full time. One of the wide ranging awards is the Clerks—Private Sector Award 2020 and it states:
“9. Full-time employees
9.1 Each of the following is a full-time employee:
(a) an employee who is engaged to work 38 ordinary hours per week;or
(b) an employee who is engaged to work the number of ordinary hours (fewer than 38) per week that is considered full-time at the workplace by the employer.”
So it is not necessarily correct to say that the Fair Work Act defines full time as 38 hours per week.
In the PAM there are various references to full time as 35 hours per week, see the following:
PAM - THE AH-101 MAIN APPLICANT
“14 Must not be working full-time
Clause 101.213(1)(b) requires the applicant not to be working full-time.
In Australia, full time work is defined on the basis of the number of hours worked each week. Persons working 35 hours or more are regarded as full-time workers; persons working for less than 35 hours are defined as part-time workers.”
Then there is regulation 2.26AC:
Reg 2.26AC Prescribed qualifications and number of points for subclass 189, 190, 489 and 491 visas
“employed means engaged in an occupation for remuneration for at least 20 hours a week.”
Of course this does not apply to subclass 482 or ENS visas.
Note also the following limitation for the points test in skilled visas:
Reg 2.27C Skilled occupation in Australia
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
There are many BVE or even BVC visa holders who have rights to work and who are working legally but that work does not count for work experience for the purposes of the points test for skilled visas. It is difficult to see the logic or justice in this but as we all know logic and justice are not necessarily found in migration law.
The term ‘employed’ is different from ‘work’
Reg 1.03 defines work as follows:
‘work’ means an activity that, in Australia, normally attracts remuneration.
There is a whole jurisprudence about this regulation which is beyond the scope of this article. For example it has been successfully argued that work in social setting does not attract remuneration and therefore is not a breach of a ‘no-work’ condition, like a relative painting a permanent resident’s house.
But what is to be made of the term ‘worked’ which applies to both the Short-term stream and Medium-term stream of the subclass 482 visa:
482.221
The applicant has worked in the nominated occupation or a related field for at least 2 years.
The absence of the word ‘full-time’ would suggest that full-time work is not required for cl 482.221. Elsewhere in the Migration Regulations the word “full time” is used when referring to work experience such as for the subclass 186 visa:
“Cl 186.234(b) “the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.”
A reasonable interpretation of cl 482.221 is that the work experience required by that provision need not be full-time!
The final issue on cl 482.221 and the comparable provision for the medium term stream, is that they are both time of decision criterion, not time of application criteria. Time of decision, of course, if a matter has been taken on review to the AAT, means the date of hearing (and subsequent decision) by the AAT. That is another issue for discussion in another blog.