1501051 (Migration)

The Administrative Appeals Tribunal considered an application by a nominator seeking approval of a nomination under the Temporary Residence Transition stream. The delegate had refused the nomination, initially on the grounds that the nominated worker was not employed in the occupation for which they held a subclass 457 visa for the required period. However, the Tribunal found it unnecessary to determine this issue, as the applicant failed to meet other criteria for approval.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal examined the requirement under regulation 5.19(3)(h) that the nominator must have a satisfactory record of compliance with workplace relations laws.

The Tribunal's reasoning focused on the applicant's compliance with workplace relations laws. Evidence presented indicated that the applicant had been investigated by the Fair Work Ombudsman due to employee complaints regarding pay. This investigation revealed underpayments totalling between $300,000 and $400,000 over two years, stemming from a breach of the "12 hour rule" concerning staff shift changes. While the applicant subsequently repaid the underpaid amounts and implemented training and changes to rostering and contracts, the Tribunal considered this to be a substantial breach of workplace obligations. Despite assurances of subsequent compliance and a satisfactory audit, the Tribunal concluded that the applicant did not demonstrate a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal affirmed the delegate's decision to refuse the nomination.