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Student Visas and Restrictions on Hours of Work
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!
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Comments
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Saturday, 04 February 2017Okay, then what about the Uber drivers? From what I understand they 'make themselves available' and wait for customer to engage them.
An UBER 'student' driver working for themselves can do anything they like between jobs. Pick up another trip, complete an assignment, google, or go for coffee! My understanding is that their work starts and stops with each job. Periods between jobs don't count as they can go to work whenever they like and stop whenever they like.... or am I wrong and its the same as the taxi driver where work time is measured by shifts? -
Monday, 06 February 2017
Uber does not have shift work, but it does has a record of driver sign on/sign off. According to the mentioned case, once driver signed on, he is available for work. Hence, there is a potential of visa cancellation due to breach of visa condition 8105 depending on how many house driver stayed signed on for work.
Uber drivers may also be targeted by ATO for GST payments. -
Wednesday, 20 September 2017
According to what the judges said "the definition of work does not go that far"
Signing on in Uber can be used by pressing a button by a smart phone and you can choose not to take the trip as you may have accidently pressed the button during a movie night and choose to refuse taking the trips and so it cannot be counted as WORK.
Seem uber is in the grey area for international students
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Monday, 23 April 2018
So on what basis the hour is been calculated. As you know I have to get online for the entire day then only i am able to make a trip when I receive an order. Does the riding hour is considered or the entire day of getting online and offline is been considered? My point is regarding hour which one is considered. As if the online and offline hour considered in 20 hours than the income in uber is only 150-200$ maximum than there is no point in doing uber?
Thanks in advance -
Friday, 20 April 2018
I am sure uber sent notification when your log in the ring and vibration from costumer let you know you can't accidentally forget and they will automatically log you off if your refusing trips. Most taxi drivers are on Abn as well not shift work.
I don't think it's a grey area Uber is legal work and you need to report your income to Ato..
Please any migration agent can share their thoughts
Thanks -
Monday, 06 February 2017
Not sure it was same the cabbie who has argued, and failed, years back that the time sat on the rank waiting for client should not be counted as working, as the magistrate had concluded that the activity of waiting on the rank for him to be hired is for the purpose of making money (for remuneration), of cause the cabbie makes no money until he's been hired.
The clock starts kicking as soon as s/he signed in, it doesn't matter whether doing shift work. -
Thursday, 09 February 2017
I am aware of a business in the sex industry that set up a study room for its overseas student workers so it could not be determined that they were working more than 40 per fortnight simply because they were on the premises. Since the work is commission- based and no retainer is paid, this satisfies the 8105 condition.
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Thursday, 28 September 2017
I have 20 hours working right per week.If I drive ubereats how I calculate my hours
Immigration blog
Oh boy, every student visa holder will just opt to be a contractor. That would mess things up.