1501285 (Migration)

[2016] AATA 3617

1501285 (Migration) [2016] AATA 3617 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  INTEGRITY FRUIT PTY LTD ATF ARDMONA PACKHOUSE UNIT TRUST

CASE NUMBER:  1501285

DIBP REFERENCE(S):  BCC2014/3169254

MEMBER:Brook Hely

DATE:1 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 April 2016 at 1:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 January 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 November 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(e) of the Regulations because the delegate was not satisfied that the terms and conditions of employment applicable to the position will be no less favourable than those provided, or would be provided, to an Australian citizen or Australian or permanent resident performing equivalent work in the same workplace at the same location.

5. The applicant appeared before the Tribunal on 17 March 2016, with Ms Leigh Nash, business manager, giving oral evidence on the applicant’s behalf. The Tribunal also received oral evidence from Mr Craig Boyce, the chief executive officer of the applicant. The nominated worker for the position, Mr Palaparambil Joy, also attended the hearing but was ultimately not required to give evidence. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

8. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a  need for the nominator to employ a paid employee to work in the position under their direct control.

9. The nomination was made on the approved form and there is no fee payable for this application. The Tribunal is also satisfied from the evidence relating to the ongoing operations of the business (as discussed below) that the application has identified a need for the nominator to employ a paid employee under its direct control.

10. As the application was made prior to 14 December 2015, the requirement to provide written certification relating to conduct that contravenes s.245AR(1) does not arise.

11. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

12. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

13. In response to the Tribunal’s s.359(2) letter requesting evidence to show that it meets all the requirements of r.5.19(4), the applicant has provided several documents to show that the applicant is actively, lawfully and directly operating the relevant business in Australia. The Tribunal has also had regard to the original documents submitted to the Department as part of the application. Specifically, the applicant has provided an ABN search relating to the business, an ASIC business named extract, recent Business Activity Statements (BAS), financial statements for the 2013/14 financial years as well as the for the year ending 31 December 2014, Trust tax return for 2013/14 and PAYG payment summaries and payslips for the nominated worker. The Tribunal also received oral evidence at the hearing regarding the ongoing operations of business. The Tribunal is satisfied from this evidence that the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

14. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

15. In the present case the nominator’s business activities do not include labour hire. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

16. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

17. The applicant has provided a copy of the relevant employment contract which states explicitly that the position is a full-time position and will be available for at least 2 years. The Tribunal is satisfied from this document that the nominated position will remain open to the nominated worker for at least two years full-time without any express exclusion of the possibility of an extension thereafter.

18. The Tribunal has also considered the financial capacity of the applicant to ensure its ability to meet this commitment to providing two years of full-time employment to the nominated worker. The Tribunal notes that the most recent available financial statements record a healthy net operating profit over the 18 month period ending 31 December 2014. The reported sales and expenditure are also consistent with the 2015 BAS statements for the business. The Tribunal also notes that the applicant has managed to meet its wage obligations in relation to the nominated worker for some time.

19. Having regard to these matters, the Tribunal is prepared to accept that the applicant possesses sufficient financial capacity to provide two years of full-time employment to the nominated worker in accordance with the proposed terms and conditions of employment. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

20. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

21. The Tribunal acknowledges the delegate’s concern with respect to the lack of evidence submitted to the Department to demonstrate that the requirements of r.5.19(4)(e) were met. However, subsequent to the delegate’s decision, the applicant has provided further information to demonstrate the relevant terms and conditions of employment for Australian citizen employees performing equivalent work in the same workplace at the same location. Specifically, the applicant provided a copy of the employment contract for another fruit inspector employed by the business, Ms JC, which records equivalent terms and conditions with those offered to the nominated worker. The Tribunal also received consistent oral evidence at the hearing from Ms Nash and Mr Boyce regarding two other Australian citizen fruit inspectors employed by the business, Ms KB and Ms AG. The Tribunal was informed that these two employees are not paid a salary, but rather an hourly rate. However, the Tribunal accepts the explanation given at the hearing that this arrangement is due to the preference of these two employees who have prioritised flexibility in their working arrangements over a consistent salary.

22. The Tribunal observes that the terms and conditions in the employment contract for the nominated worker are consistent with the National Employment Standards. The Tribunal acknowledges that the employment contract is arguably not consistent with the requirements of the relevant Horticulture Award, to the extent that the contract provides a flat salary regardless of hours worked whereas the Award provides for a variety of penalty rates and loadings depending on the hours/days actually worked.  However, the Tribunal accepts the oral evidence given at the hearing to the effect that the applicant conducts an annual audit for each of its employees to reconcile their hours worked and wages paid over the preceding year against their entitlements under the relevant Horticultural Award. To this end, following the hearing the Tribunal was provided with a copy of the most recent reconciliation conducted in relation to Mr KB and Ms AG. The Tribunal also observes that the salary for the nominated worker under the employment contract ($1038.47 per week plus superannuation) is significantly higher than the minimum weekly salary under this Award for a level 5 classification employee ($764.90). The Tribunal notes that a level 5 classification is the highest classification under the Award and the classification most fitting of this position. Having regard to these matters, the Tribunal is satisfied that the terms and conditions of employment for this position exceed the minimum standards set by the relevant Award.

23. Having regard to the above, the Tribunal is satisfied that the terms and conditions of the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

24. The Tribunal is satisfied from the above that the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

25. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

26. At the hearing, Ms Nash informed the Tribunal that there was one occasion when she was contacted by the Department in response to anonymous allegations made against the business that it had been employing migrant workers without appropriate work rights. Ms Nash informed the Tribunal that it was the belief of herself and management that this allegation was made by a disgruntled former employee who also lodged complaints with Worksafe and Fair Work Australia (discussed below). She said that she received one telephone call from the Department to answer some questions about the applicant’s workforce. However, there was no follow-up to this matter and no further action was taken by the Department.

27. There is otherwise nothing before the Tribunal to show any adverse information known about the relevant business or anyone associated with it. Ms Nash also confirmed that neither the nominator nor any person associated with it has ever otherwise been the subject of any warnings, sanctions, investigations or any other problems with the Department or any other government agency, either in relation to this application or for any other reason.

28. Given that no formal action was taken in response to the anonymous allegations made against the applicant aside from one telephone call, and given the applicant’s credible denial of the allegation, the Tribunal is satisfied that this does not amount to adverse information known about the relevant business or anyone associated with it. Alternatively, the Tribunal is satisfied that it would be reasonable to disregard any such information.

29. The Tribunal is satisfied from the above that the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

30. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

31. At the hearing, Ms Nash explained that a disgruntled former employee lodged an unfair dismissal complaint with Fair Work Australia. The applicant disputed the claim and the matter was referred to the applicant’s insurer to handle. The matter eventually resolved with a financial settlement and no admission of liability, the terms of which were negotiated by the applicant’s insurer. A copy of the relevant Deed of Settlement and Release was provided to the Tribunal following the hearing. Ms Nash and Mr Boyce also gave evidence that this employee made allegations to Worksafe, claiming the workplace was not safe due to a tripping hazard been caused by an electrical extension cord. A Worksafe inspector visited the applicant’s workplace, although dismissed the allegation as unfounded and no further action was taken.

32. Ms Nash also mentioned another unfair dismissal complaint that was lodged many years earlier. However, she was not familiar with the details other than to note that it also resolved with a settlement by the applicant’s insurer.

33. There is otherwise nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations. Ms Nash also confirmed that the applicant had never otherwise been the subject of any warnings, sanctions, investigations or any other problems with any State, Territory or Commonwealth government agency involved with workplace relations. He also confirmed that the applicant has never had legal proceedings brought or threatened against it by any of its employees.

34. Notwithstanding the matters referred to above, the Tribunal is satisfied that the applicant has a satisfactory compliance with workplace relations laws and, accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training benchmarks r.5.19(4)(h)

35. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 15/091) and certain specified training benchmarks will be met: r.5.19(5)(h)(i)

    or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position: r.5.19(4)(h)(ii)

36. In the present case, the reasons that follow the Tribunal is satisfied that the nomination meets each of the requirements of r.5.19(4)(h)(ii). It is therefore not necessary to reach any findings with respect to r.5.19(4)(h)(i).

    Business and position is located in regional Australia

37. The Tribunal accepts from the documents submitted and oral evidence given at the hearing that the relevant business and position are located in Ardmona (postcode 3629), which is classified in the relevant instrument as regional Australia. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the paid position under the nominator’s direct control

38. As indicated earlier, the Tribunal is satisfied from the documents submitted that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. In making this finding, the Tribunal notes that the applicant has already been employing the nominated worker in the position for a substantial period of time. The Tribunal accepts that there remains an ongoing need to employ someone in this role, particular given the difficulty in recruiting appropriately skilled workers to this regional area and the ongoing operational demands of the business.

39. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(B) are met.

    Position cannot be filled by a locally resident Australian citizen or permanent resident

40. The Tribunal accepts from the documents provided that the applicant advertised for the nominated position, both through local print media and via the Internet. The Tribunal accepts that the applicant was unable to recruit a suitably qualified Australian citizen or permanent resident living locally. The Tribunal is satisfied from this evidence that the position cannot be filled by an Australian citizen or permanent resident who was living in the same local area to where the position is located. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(C) are met.

    Tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3

41. The nominated position is a Primary Products Inspector nec (ANZSCO 311399), which is an ANZSCO skill level 3 occupation. The Tribunal received consistent and credible oral evidence at the hearing from Ms Nash and Mr Boyce regarding the duties of the position. The Tribunal interrogated the issue of whether the tasks of the position corresponded to a low skilled position, such as a factory process worker or farm worker. The Tribunal has also had regard to the relevant occupation tasks listed in ANZSCO for a Primary Products Inspector. The Tribunal accepts on the evidence before it that the tasks of the relevant position correspond to the majority of those listed under ANZSCO and involve a sufficiently superior level of skill and experience to fall within ANZSCO skill level 3.

42. Having regard to the above, the Tribunal accepts that the tasks of the position correspond to those of an occupation at the ANZSCO skill level 3. The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(D) are met.

    Regional certifying body

43. The Tribunal accepts from the certification document submitted with the application (Department file, folio 36) that a relevant certifying body has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C). The Tribunal is therefore satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met.

44. Having regard to the above, the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.

    Conclusion

45. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

46. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Brook Hely
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).