1501826 (Migration)

[2015] AATA 3834

1501826 (Migration) [2015] AATA 3834 (8 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Safe Movers Pty Ltd

CASE NUMBER:  1501826

DIBP REFERENCE(S):  BCC2014/2937024

MEMBER:Denise Connolly

DATE:8 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 08 December 2015 at 3:28pm

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 20 January 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 5 November 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The applicant has provided a copy of the delegate’s decision record to the Tribunal. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(h) because the applicant had not submitted a written contract of employment signed by both parties, as required by Departmental policy.

4. Mr Rafael Bastos, on behalf of the applicant, appeared before the Tribunal on 16 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Evidence provided to the Department and Tribunal

1. The applicant has claimed that there is a genuine need for a position Fleet Manager (ANZSCO 149411) and that the nominee, Rafael Bastos (also the Director/Owner of Safe Movers Pty Ltd) would be employed in the position at Warriewood, NSW. It is stated the nominee will be employed under a written contract.

2. The representative provided a written statement explaining that Mr Bastos established Safe Movers Pty Ltd in July 2014 specialising in commercial and residential removals and that the business operates in the Perth metropolitan area. The business has 2 vehicles purchased by Mr Bastos. He leases other vehicles on a temporary basis according to demand. It is submitted that as the Fleet Manager Mr Bastos will coordinate, maintain and procure vehicles.

3. The applicant provided an unsigned copy of a letter of engagement, dated 8 September 2014, addressed to the nominee, stating the remuneration would be $55,000 per annum.

4. An unsigned contractor agreement between Two Men and A Truck Pty Ltd (TMAAT) and the applicant was also provided. Tax Invoices issued by TMAAT were provided recording the removalist team as ‘Rafael’. There are also invoices confirming Rafael Bastos had hired moving vans.

5. The Business Plan provided describes the business as a removal service. It states the business has a fleet manager, an office clerk and a removalist. The projected payroll is recorded as Year 1 - $83,400, Year 2 - $100,500 and Year 3 - $106,500. The written description of the Fleet Manager’s duties include preparing annual budgets and reports, purchasing or leasing vehicles and equipment, controlling maintenance and repair of the fleet, organising replacements and disposal of old vehicles, arranging insurance, keeping employees informed about fleet programs and progress, advising prospective employees and recruiting staff, allocating human resources, managing marketing, advertising and promotion, determining the budget for marketing, conducting market research and reviewing results.

6. The delegate found the applicant had not met the requirements of r.2.72(10)(h) because the contract of employment provided had not been signed by both parties.

7. Prior to the hearing the Tribunal invited the applicant to provide information in relation to the requirements of r.2.72. This included a copy of the contract signed by the nominee and the employer, Mr Bastos. It also requested information to demonstrate that the position associated with the nominated occupation is genuine.

8. The applicant responded with information including evidence that the nominee, Rafael Bastos, is also the company director and is the only employee of the company.  A signed contract between TMAAT and Safe Movers was provided, as well as financial documentation.

9. A position description was provided indicating the duties of the position include selecting, purchasing and leasing vehicles, maintaining vehicles, coordinating vehicle use, negotiating purchase and lease price, maintaining registration, service and inspection records, allocating vehicles for projects, and liaising with contractors and subcontractors.

Hearing on 16 October 2015

1. The applicant provided a letter of engagement dated 10 October 2015 signed by Mr Bastos as the nominee. The base salary proposed is $65,000 per year.

2. The applicant also provided an organisational chart indicating Mr Bastos is the Fleet Manager, and that there is a part-time offsider team leader and four casual employees who work as drivers and offsiders.

3. At the hearing the Tribunal discussed with the applicant the requirements of r.2.72, the size, nature and operations of the business, and the ANZSCO definition for the occupation Fleet Manager. In particular it raised concerns with the applicant as to whether there is a genuine need for a Fleet Manager, and whether the business is in a financial position to pay the nominee (Mr Bastos) the base salary proposed. The following is a summary of the evidence provided at the hearing.

4. Mr Bastos confirmed that he is the owner and only director of the business. The business has had two vehicles, a truck and a utility. The business does not have leased vehicles. It has an account with a rental agency, Budget from which it rents trucks as need be. Mr Bastos was unable to estimate how many times the business has rented from Budget in the past 12 months but thought it was at least once a week.

5. The Tribunal asked about the role of the team leader and the casual staff. Mr Bastos said the team leader started working for the business on a part-time basis in May or June 2015. He is paid a salary of about $30,000. The business has four casual workers - drivers and offsiders who work as required. After completing a job they report back to Mr Bastos and fill out a check list.

6. The Tribunal asked about the BAS for the July/September 2015 quarter. The applicant indicated there was turnover of about $38,000 and the salary and wages expenditure was about $16,000. The Tribunal noted that this appeared to be relatively low turnover and wages expenditure. The applicant submitted that the business is gradually growing.

7. The Tribunal asked Mr Bastos if he is currently working in the position. He said that he started the business in July 2014. He drove to Perth and found workers. He works in the position Fleet Manager. He spent the first few months setting up the business and it got its first job in September 2014.  Business picked up in the October/December 2014 quarter.  The Tribunal asked about the TMAAT subcontracts dated September 2014. He indicated he had worked as a removalist for those subcontracts.

8. The Tribunal asked Mr Bastos about the requirements of the position. He indicated that it had been very stressful for him to start and manage the business. He was searching for the best leasing arrangements and decided to rent from Budget on a daily basis and from Avis when he needs a vehicle overnight. He takes his two vehicles to the mechanic for servicing and maintenance.

9. The Tribunal asked Mr Bastos about his income while holding the position. He said that he has paid himself a taxable income of $20,000. The Tribunal noted that this is significantly less that the proposed base salary of $65,000. He said that this has been because the business is developing and he could not afford to pay himself more.  He claimed that the nomination refusal has impacted on his ability to pay himself the proposed amount because the uncertainty has meant that he has not been able to borrow and invest in the business. He said he has not been employed under the terms and conditions because he has been working less than 38 hours per week.

10. The Tribunal asked about the business’ current turnover. He said that the business charges $100 per hour. In the last 3 months it has had jobs equivalent to 30 hours per week, or 360 hours. The Tribunal noted that this was not much work and asked if he in fact has been doing the driving for these jobs. He denied this. The Tribunal asked why he had not been driving, given the size of the business, and he said it was because he is the fleet manager. It asked what else the position is required to do, such that he cannot drive. He said he looks after partnerships with clients such as an antique shop, negotiates with clients and does marketing.  He has also met with the bank because he wants to buy a bigger truck and a small truck.

11. The Tribunal asked the applicant to describe all of the duties of the position. Mr Bastos said the position manages the team and the vehicles. It arranges maintenance if a vehicle has a problem. It will also train and orientate the workers, manage new staff and assign duties. It will develop the business and the fleet, arrange the purchase of another vehicle and manage the finances.

12. The Tribunal raised its concern that it may not be satisfied, given the size of the business, and the duties of the position, that it needs a Fleet Manager and that the position might be broader, such as a business manager. It explained that, given the ANZSCO definition for Fleet Manager, it may not be satisfied a business of this size genuinely needs this position. Mr Bastos acknowledged that he manages the business. He indicated that if he had more trucks, he could employ more people and there would be more equipment to manage. Even though he has only two trucks his fleet needs to be managed. It is just a matter of time before the fleet will increase.

13. The Tribunal raised its concern that the applicant may not meet other requirements of r.2.72 with respect to terms and conditions and the base rate of pay. It explained that it is requirement that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. It noted that the business’ finances do not support the assertion that the nominee will be paid the proposed base salary of $65,000. Mr Bastos indicated that if the business grows it will be able to afford a fleet manager. He admitted that the position was paid only $20,000 last year however he asserted its anticipated turnover this year is $200,000. He referred to the growth of TMAAT and asserted his business will be able to emulate this growth.

14. The Tribunal agreed to wait for the outcome of the applicant’s application for approval as a standard business sponsor.

15. After the hearing the applicant provided evidence that the Department had approved the standard business sponsorship application.

16. As indicated at the hearing when considering whether the position associated with the nominated occupation is genuine, the Tribunal has had regard to the definition set out in ANZSCO, in part, as follows:

UNIT GROUP 1494 TRANSPORT SERVICES MANAGERS
TRANSPORT SERVICES MANAGERS organise and control the buying and selling of vehicles for rental agencies and coordinate the leasing of vehicles, the operations of railway stations, and the operations of enterprises that operate fleets of vehicles to transport goods and passengers.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. In Australia:

AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Tasks Include:

oorganising the purchase and maintenance of transport vehicles, equipment and fuel

oliaising with clients to determine requirements and providing customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints

oreceiving orders and bookings, and planning and implementing transportation schedules

oensuring goods are stored and transported in conditions that will maintain their quality

oarranging collection and delivery of vehicles and goods

omaintaining business records and preparing operational statements and reports

ocoordinating activities associated with the arrival, departure, loading and unloading of trains

oensuring compliance with occupational health and safety regulations

Occupations:

149411 Fleet Manager
149412 Railway Station Manager
149413 Transport Company Manager

149411 FLEET MANAGER

Organises and controls the buying and selling of vehicles for rental agencies and coordinates the leasing of vehicles. Registration or licensing may be required.

Skill Level: 2

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

2. Having considered all of the written and oral evidence about the business, the Tribunal finds Safe Movers Pty Ltd is a small removal business recently started by Mr Bastos who is also the nominee for the position. The business currently owns two vehicles and it rents vehicles from Budget and Avis as required. The applicant has told the Tribunal that in a recent financial quarter it provided services for about 360 hours. It has four casual drivers and offsiders however on the oral evidence provided to the Tribunal they do not work on a full-time basis. The business has asserted that it needs a Fleet Manager. While the Tribunal accepts that, in order to operate, it needs Mr Bastos to undertake various duties involved in managing a small business, for the reasons given below the Tribunal is not satisfied the business genuinely needs a Fleet Manager.

3. The occupation Fleet Manager appears in Unit Group 1494 Transport Services Managers in ANZSCO. Transport Service Managers organise and control the buying and selling of vehicles for rental agencies and coordinate the leasing of vehicles and the operations of enterprises that operate fleets of vehicles to transport goods and passengers. In the Tribunal’s view, this description indicates that the occupation typically manages a larger scale operation than that of Safe Movers Pty Ltd. ANZSCO describes the occupation Fleet Manager as a position which organises and controls the buying and selling of vehicles for rental agencies and coordinates the leasing of vehicles. This also suggests that the position is involved in a larger scale enterprise than Safe Movers, which is essentially a small removalist business.

4. The Tribunal is of the view the business needs the position to manage all of its processes to function as a small business. Mr Bastos does attend to the purchase and sale of vehicles however the business only owns two vehicles and the Tribunal is not satisfied their purchase, maintenance and disposal take up significant time. The Tribunal accepts that the position arranges the rental of vehicles from Budget and Avis. However, taking into account Mr Bastos’ oral evidence about the business’ turnover in the last 12 months, that the business has rented a vehicle at least once a week, it is not satisfied these arrangements are time-consuming. The Tribunal accepts that the position undertakes other duties such as selecting and training staff, arranging finances, marketing, budgeting and dealing with clients, however it is not satisfied these duties are those of a Fleet Manager. The Tribunal is of the view these are the duties of a position managing a small removalist business.

5. The Tribunal accepts that the position is required to liaise with clients about the removal service required. However it is not satisfied that this liaison focuses on providing advice and information regarding vehicle type, purchase or hire rates. It is not satisfied the business requires the position, to any notable extent, to arrange collection and delivery of vehicles. It may maintain business records and coordinate activities associated with the arrival, departure, loading and unloading of vehicles as part of the removalist service it provides however this is on a small scale. On the basis of the oral evidence about the business’ jobs in the last 3 months the Tribunal is not satisfied the current demands of the business require much time to be spent on these tasks.

6. The Tribunal considers the occupation definitions provided in ANZSCO under Unit Group 1494 are reflective of positions required by larger scale enterprises than Safe Movers Pty Ltd. When the Tribunal raised this concern with Mr Bastos he expressed his desire to grow the business and increase the fleet. The Tribunal accepts that this is his intention. However it is considering the business’ current needs.  On the basis of the evidence about the size and operations of the business it is not satisfied the business genuinely needs a Fleet Manager.

7. Having considered all of the written and oral evidence the Tribunal is not satisfied the business currently requires a Fleet Manager. Accordingly it is not satisfied the position associated with the nominated occupation is genuine.

8. For these reasons the requirements of r.2.72(10)(f) are not met.

Terms and conditions of employment and base rate of pay

1. At the hearing the Tribunal discussed with the applicant its concerns about whether the business will be able to provide to the nominee the terms and conditions of employment that will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. It has concerns that the applicant is not in the financial position to provide a base salary of $65,000 as proposed. However as the applicant has not met r.2.72(10)(f), a mandatory requirement for the nomination to be approved, it is not necessary for the Tribunal to make findings in relation to these factors.

Conclusions

1. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

Denise Connolly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(9)The Minister is satisfied that either:

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

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

(10)If the person is a standard business sponsor — the Minister is satisfied that:

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)       are provided; or

(ii)      would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)      if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)     unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)       the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.