When is work “work”?

When have you spent too much time working as a cab driver?

Yep, if you thought you could continue to do migration work and avoid imponderable questions like this, you were sadly mistaken! And yes, it is too late to contemplate doing any other type of occupation!

So, keep reading and the answers will reveal themselves!

This question of when work is work came up in a case that was decided in the Federal Circuit Court a couple of weeks ago, on 18 January 2017 – Verma v Minister for immigration & Anor (2017) FCCA 69.

And it is actually an important question, especially for anyone advising a client who holds a student visa concerning how much they can work.

As we all know, Condition 8105 , uniformly imposed on student visas, restricts the number of hours that a visa holder may engage in work to no more than 40 hours per fortnight when the holder’s course of study is in session.

And section 116(1)(b) provides that a person’s student visa may be subject to cancellation if the holder does not comply with the conditions of the visa.

So what if the visa holder has a job as a cab driver, and claims to be studying between picking up passengers and driving them to their destinations?  Is the visa holder actually “working”  during the entire “shift” that he/she is on duty for the taxi company, or only when actually driving?

That was the question in Verna.

The delegate had obtained copies of the records of the taxi company that employed the visa holder. Review of these records revealed that the visa holder had “logged in” for shifts for about 11 hours each day, five days a week, during the period between October 2013 and July 2015.

Sounds like big time trouble, right?

Well, the student visa holder, who acted on his own behalf in the proceedings in the Federal Circuit Court, contended that the periods of time during which he was “working” should be calculated not based on when he was logged in for work at the taxi company, but only when he was actually driving passengers.  He argued that the times in between, when he claimed to be studying, should not “count” as periods of work.

How far did this argument go? Not very far at all!  It was rejected both by the Tribunal and the Federal Circuit Court.

The Court (Judge Young) referred to the definition of the term “work” in regulation 1.03.

This regulation states that “work means an activity that, in Australia, normally attracts remuneration”.

So Judge Young took the view that once a person actually begins her/his driving shift, the time waiting for a passenger or between passengers is a “necessary and inextricable aspect of driving a taxi for remuneration”; periods spent reading a book or studying while waiting for passengers still count as “work”, because during these times the driver is still “primarily engaged in the activity of taxi driving for remuneration”.

A further interesting question was addressed by Judge Young in the Verma case: Does being available for work, for example, being a contractor who is available for work for an entire week but who actually undertakes work for just 2 days a week equate to being at work the entire time the person is “available”?

In Judge Young’s view, the answer to that question would be “no”, the definition of work just does not go that far.

So the basic lesson of this case is that if a person is actually logged in for a shift at an employer, the periods of time when the person is so logged in all would be counted as “work”. So even if a student is working the late night shift at 7 – 11, for example, they are considered to be working without regard to whether they are actually doing the work for which they are being paid, for example, playing solitaire on their phone, or reading the latest horror story about Trump on the New York Times Website during periods when they’re not doing the “actual work” of the job, like driving a cab.

And if signed on for shifts that amount to more than 40 hours per fortnight, it can result in visa cancellation!

Bet you wouldn’t have ever guessed that periods of goofing off could be consider “work”, did you!


Courtesy of Migration Alliance
Posted by Michael Arch