1508278 (Migration)

[2016] AATA 3575

1508278 (Migration) [2016] AATA 3575 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  COFFEE ON ST GEORGE PTY LTD

CASE NUMBER:  1508278

DIBP REFERENCE(S):  BCC2014/3365731

MEMBER:Kate Millar

DATE:22 March 2016       

PLACE OF DECISION:  Adelaide

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

Statement made on 22 March 2016 at 2:47pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Coffee on St George Pty Ltd operates a franchise of The Coffee Club in central Perth.  It wants to employ Ms Valentino Rosso, a citizen of Italy, as a Café or Restaurant Manager and sponsor her for a visa.  On 8 December 2014 it applied for approval of the nomination of Ms Rosso for the position of Café or Restaurant Manager, and its nomination was refused by a delegate for the Minister for Immigration and Border Protection.  The nomination was refused because the delegate was not satisfied the tasks of the position were at the required skill level for approval of a nomination.

2. Mr John Gallerello appeared before the Tribunal on 20 January 2016 and 10 March 2016 on behalf of Coffee on St George to give evidence and present arguments. He is the husband of a director of the company and said he is authorised to appear on behalf of the company.  Coffee on St George was represented in relation to the review by its registered migration agent, and the representative attended the tribunal hearing.

3. 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

4. The applicant applied for approval on 8 December 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Migration Regulations 1994 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).

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

6. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations. This was because the delegate found the tasks of the position were more like a Retail Supervisor than a Café or Restaurant Manager, and the skill level for a Retail Supervisor provided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is 4. To meet the requirements of r.5.19(4)(h)(ii)(D), the skill level must be 1, 2 or 3.

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

   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 must identify a  need for the nominator to employ a paid employee to work in the position under their direct control.

   The application is in the correct form and there is nothing to indicate the fee was not paid.  The application identifies a need for a paid employee to work in the position under the direct control of the sponsor.  

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

7. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The company is registered with the Australian Securities and Investment Commission, and also provided business activity statements to the Department.  Mr Gallerello showed a detailed understanding of the business, and I have no doubt it is actively, lawfully and directly operating the business. 

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

8. Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business.  Coffee on St George does not have a business involving labour hire.

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

9. 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 extension of the employment. 

10. Coffee on St George stated in its application that it would employ Ms Rosso for at least two years full time.  Mr Gallerello said it can be hard to retain staff as the nature of the business means that staff move on,  Coffee on St George has intermittently employed Ms Rosso since 2012, and I find she will be employed for at least two years full time.  The contract does not contain any provisions that would limit the ongoing employment of Ms Rosso, and this requirement is met.

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

11. It is a requirement at r.5.19(4) at r.5.19(4)(e) that:

    (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
    …

12. Mr Gallerello said the employment contract is developed from standard terms used by the franchisor, and as such is the same as other employees at this level.  The employment contract adopts the terms and conditions in the Restaurant Industry Award 2010.  Coffee on St George provided information from Payscale to show that the pay offered to Ms Rosso is within the range of payments for this position.

13. With the application, Coffee on St George provided an employment contract for Ms Rosso.  This employment contract provides the following terms (among others):

    ·The position is classified as food and beverage attendant level 5 in the Restaurant Industry Award 2010. 

    ·It has a full time salary position of $45,500 excluding superannuation. 

    ·The salary is an annualised salary for the purposes of the award, which means that certain provisions of the Award do not apply. 

    ·This salary compensates for split shift allowance, overtime, penalty rates and shift loading.

14. Clause 28.1 of the Restaurant Industry Award 2010 (Award)[1] states:

    28.1 Alternative method of payment—annual salary

    (a) As an alternative to being paid by the week, by agreement between the employer and an individual employee, an employee other than a casual, can be paid at a rate equivalent to an annual salary of at least 25% or more above the weekly rate prescribed in clause 20—Minimum wages, multiplied by 52 for the work being performed. In such cases, there is no requirement under clauses 24.2, 33—Overtime, 34.1 and 34.2 to pay overtime and penalty rates in addition to the weekly wage, provided that the salary paid over a year was sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations had been complied with.

    (b) ….[2]

    [1] (accessed 20 January 2016)

    [2] at cl.28.1 (accessed 20 January 2016)

15. The minimum weekly rate for a Food and Beverage Supervisor Level 5 in the Award is $812.80.  Multiplied by 52 this gives an amount of $42,265.60 and adding 25% of this amount provides an annual salary of $52,832.  

16. Ms Rosso’s salary is $45,500 excluding superannuation.  Adding superannuation at 9.5% to this annual salary results in an amount of $49,822.50.  This is less than the specified annual salary of $52,832.

17. Given Ms Rosso’s annual rate was less than that specified in the Award, Coffee on St George was asked under s.359(2) to provide information to show that Ms Rosso’s terms and conditions of employment will be no less favourable than those that are provided or would be provided to an Australian citizen, Australian permanent resident performing equivalent work in the same workplace at the same location.  It was also asked for information to show that, if it now relied on the postion being a Level 4, how this was consistent with the tasks of a Café or Restaurant Manager.

18. Coffee on St George provided the following response:

    To whom it may concern,

    Please provide the following information and documentation to the member:

    ·Offer of employment for the nominee at time of application, which will be adjusted to Level 4 upon confirmation of the visa.

    ·Payroll advice for an Australian employee, employed within the business, in the same position previously and based on the same award level and identifying terms of salary offered to Valentina are no less favourable than what has been previously provided to the Australia employees, within the same role.

    …

19. The offer of employment provided is the offer for a level 5 position.  The submission was, somewhat alarmingly, that the position would be adjusted to level 4 on the grant of the visa.  This was said to be the equivalent to the person who is currently working in the position, and the payslips of another employee employed at level 4 were provided.  Evidence of the citizenship or residency status of the person or evidence of the person’s role in Coffee at St George was not provided.

20. This response indicated to me that the terms and conditions of employment being offered to Ms Rosso include a term that the classification of the position will be changed on the grant of the visa.  While revision of a contract could occur to an Australian citizen or permanent resident, that this will occur on the grant of the visa is not something that could occur to an Australian citizen or permanent resident.  As such, I find that the terms that her classification will be changed to a lower level on the grant of the visa is less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident.

21. As a result, I held a further hearing on 10 March 2016.  Mr Gallerello again attended.  After the hearing he provided a revised contract stating Ms Rosso would be employed as a Food and Beverage Supervisor Level 5, and that her rate of pay would be determined by the Award.  Ms Rosso had not signed the letter of offer, and Mr Gallerello said this was because she is on leave.  While I had some reservations about whether her terms and conditions were less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same location, on balance I concluded this requirement is met. 

22. As a result, I find that Coffee on St George meets r.5.19(4)(e) of the Regulations.

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

23. 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7). There is no adverse information before me, and on the information available to me the requirements of r.5.19(4)(f) are met.

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

24. 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.

25. There is nothing before me to show Coffee on St George has a record of non-compliance with the relevant laws. 

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

26. 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:

    ·     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.

27. The position and business are located in Western Australia, all of which is classified as regional Australia (IMMI 11/058). 

28. At hearing, Mr Gallerello provided the approval of a nomination for a position for Marie Kreipe on 14 December 2015.  Ms Kreipe is the other person who appears with the position title of Café or Manager in the organisational chart of Coffee on St George.

29. Mr Gallerello said he considers they required two positions of café or restaurant manager due to the hours the business is open.  It is open from 6am to 5pm Monday to Friday and 8am to 3pm on weekends.  He said he and Mrs Gallerello want a person who is responsible for the business at the business when it is open.    He said the business is open for over 70 hours a week and this requires two managers working together.  The managers alternate opening and closing the business.    On being asked whether a shift supervisor would be adequate for the second role given he has a café manager, he said a shift supervisor can look after the shift but cannot do tasks like order food, allocate the staff to the positions.

30. Mr Gallerello provided a copy of the franchise agreement after the hearing.  This states at cl.5.2(a)(iv) that a manager must work in the store during core hours.  Core hours are referred to in the preceding clause immediately as the core trading hours of the building or centre in which the store is located.  According to Mr Gallerello the hours are 6am to 5pm weekdays and 8am to 3pm on weekends, and there are too many hours for one café manager.

31. While it is possible that a shift supervisor would be adequate for the role, I accept that the way in which the business is structured results in the business owners wanting a manager present at all times when the business is trading, and I accept they have a genuine belief that this is the best way to run the business.  As a result, I accept there is a genuine need for the position under the nominator’s direct control.

32. Mr Gallerello said they last tried to recruit to the position at the start of 2015, and that they had trialled two applicants, but they did not have the skills in dealing with the public required of the position.    He said, and I accept, the quality of candidates was not what they were comfortable with and were not the right fit with the business.  I am satisfied that the position cannot be filled by a locally resident Australian citizen or permanent resident. 

33. Mr Gallerello said the tasks of the position include opening and closing the store, banking, ordering.  The position is also involved in allocating tasks to staff on each shift.  Mr Gallerello said Ms Gallerello does the roster and that he prepares the reports for the franchisor.  The business development manager for the franchisor liaises with the case manager.  They have monthly business development meetings with the café managers.  The café managers are required to write reports and maintain quality according to HACCP, a quality assurance system.  They report on repair of equipment.  Mr Gallerello said the menu is set by the franchisor but for catering orders the business is more flexible in terms of what they can provide and the manager works with the customer requests.  The pricing for catering is done by the café manager.  For items that are not on their usual menu the pricing mark up is set with the owner.  The franchisor sets the suppliers and the café managers order the stock from the nominated suppliers.  The café manager is responsible for training staff.

34. These tasks are consistent with the tasks nominated by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as being the tasks of a café or restaurant manager which, according to ANZSCO, has a skill level of 2. 

35. Coffee on St George provided a certificate from the regional certifying body, Skilled Migration WA.

36. Accordingly the requirements of r.5.19(4)(h) are met.

37. 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

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

    Kate Millar
    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).