1612356 (Migration)

[2016] AATA 4667

1612356 (Migration) [2016] AATA 4667 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CITY ESSENTIALS MELBOURNE PTY LTD

CASE NUMBER:  1612356

DIBP REFERENCE(S):  BCC2016/513128

MEMBER:Rania Skaros

DATE:22 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2016 at 9:51am

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 28 July 2016 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 3 February 2016. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r. 2.72(10)(aa) because the delegate was not satisfied that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. The delegate formed the view that the tasks of the position aligned with the tasks of the occupation Retail Manager, which is not an occupation in the relevant instrument.

4. Mr Mustapha Ahmad appeared before the Tribunal on 4 November 2016 to give evidence and present arguments on behalf of the applicant. Mr Ahmad is the business’ General Manager. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. The issue in this case turned on whether the applicant meets r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine.

   Evidence before the Tribunal

9. The applicant nominated the occupation of Customer Service Manager (149212). Prior to the hearing the Tribunal received a submission dated 3 November 2016 indicating that the company wished to nominate Mr Emad El Deen Jabara (the nominee) as its customer service manager. The submission provided details of the responsibilities of the position and indicated that the nominee would be responsible for overseeing city convenience stores in Australia. The responsibilities noted included, refining and improving policies to ensure results at the store level and that sales budgets are achieved, policies governing employee actions that affect the business’ relationship with its customers and building goodwill, staff obligations, including interaction with customers, store cleanliness, layout and ensuring stock levels are efficient to satisfy customer needs. It was also indicated that the position involves rotating frequently between site locations to ensure that policies are working and improving on the processes and outcomes, monitoring social pages and assessing customer feedback and responding to complaints. It was noted that the position involves working on the ground level directly with the stores, providing advice on the most suitable person to work as the store manager, following up on the recruitment process and assessing new staff members and providing feedback to the staff and ensuring store managers are leading by example and reassessing policies to ensure continuous improvement.

10. Also provided was a list of over 30 stores located in Sydney and Melbourne. The Tribunal noted at the hearing that the reference and the submissions referred to a business that had a different ABN and that the applicant’s business appeared to operate under a separate ABN and the relationship between the businesses was not clear. Mr Ahmad explained the business’ structure at the hearing and clarified that the applicant, which operates under a different ABN, directly operates seven stores, three in Melbourne and four in Sydney, and that it was those stores that the nominee would have responsibilities for.

11. At the hearing, the Tribunal acknowledged the written submissions and asked Mr Ahmad to describe the tasks involved in carrying out the responsibilities of position on a day to day basis. Mr Ahmed explained that a number of the stores operated by the applicant, which are in the premises of the Crown City Casino, hold great value for the applicant and its reputation and that a number of staff there need help, review and training. He explained that the position involves managing staff, there are a total of 14 staff members, and because it is a family business many of the staff members are employed from within the same community and the nominee speaks same language which makes it easier for him to communicate with the staff members and to provide motivation and mentoring. The position involves getting the staff to create a relationship with the customers.

12. When asked to provide further details about how the duties are actually carried out on a day-to-day basis, Mr Ahmad explained that the nominee is required to manage staff members, motivates the staff and develops the staff that are providing customer service and provide training programs. The Tribunal noted that one of the responsibilities of the customer service manager is developing and reviewing policies and procedures relating to customer services. When asked what is actually involved in carrying out this task, Mr Ahmad explained that it involves training the staff which includes role playing and how to deal with negative feedback. It involves dealing with the top ten complaints, which include customers not being happy with the product or store layout, and training staff on how to deal with the complaints and how to make sure the customers are happy. He explained that the nominee will teach the staff on how to deal with delicate situations, ensure that the staff members are adhering to the high standards of Crown Casino as they have to deal with high net worth individuals which have certain requests. Mr Ahmad provided details of the policies of crown casino and explained that the nominee would implement those policies, which also include implementation of after sales service. He stated that the nominee would be in charge of newsletters and maintaining relationships with the top 10 customers that come in and spend a lot of money and are known by name.

13. The Tribunal formed the view that the position was that of a Retail Store Supervisor / Store Manager. It explained to Mr Ahmad that the position of customer service manager as described in the ANZCO are usually found in large organisation and involve more than training front line staff on how deal with customers. The Tribunal also noted that nature of the business, which operates retail store outlets, when considered in combination with the types of tasks involved, appear to suggest that the position is that of a Retail Store Supervisor or Store Manager.

14. In response, Mr Ahmad explained that at the end of the day they have to make sure customers are happy and for this reason the position is very important as they have to prevent the problems before the issues arise. He stated that he is too busy to deal with these issues and that the business requires a customer service manager to deal with these day to day issues.

15. The Tribunal explained to Mr Ahmed that while they may call the position customer service manager, the Tribunal must determine whether the position can be classified as a being in the occupation of ‘customer service manager’ as described in the ANZSCO. The Tribunal expressed its concern that the nature of the business, which are small retail convenience stores, and the nature of the tasks, which are primarily involved with training frontline customer service staff, do not suggest that the position involves the complexities and managerial level tasks described in the ANZSCO.  

16. In response, Mr Ahmad stated that the three stores raise operational issues, staff members require training on helping customers, there are programs for customer relations and it involves reviewing compliance and the products offered.

17. The representative submitted that the stores are located in the Crown Plaza who have strict standards and that the business had to meet the high quality standards imposed. The Tribunal noted that the policies of customer service appear to be set by the Crown Plaza and not the applicant’s business.

18. The representative submitted that the position required by the company is that of customer service manager. The Tribunal again explained that it was required to assess the nature of the position against the ANZSCO to determine whether it aligns with the nominated occupation.

19. Mr Ahmad submitted that the nominee has to develop the customer service policy for the stores and set standards and procedures on how the front line staff is to deal with customers, find ways to measure customer service satisfaction through feedback, either through the casino or staff, co-ordinate and communicate with frontline staff, resolve complaints, sometimes face to face with customers, intervene in certain situation, handle enquiries directly from crown, such as warnings of thefts or notification of important guests at the hotel. Mr Ahmad stated that the business has to service a large number of people because of its location and that the service, given the location of the stores, has to be more personalised given the types of customers that visit the store.

20. After the hearing the Tribunal received a number of submissions and supporting documents.

21. In the written submissions the representative stated that the classification in the ANZSCO do not limit the position to call or contact centres as was suggested by the Tribunal but provides a range of tasks which may be synonymous with other forms of commercial operations or setups. It was argued that the ANZSCO describes the tasks as including ‘may’ work in a call centre. It was submitted that the guidelines, which included those developed by the company and Crown Plaza, copies of which were provided to the Tribunal, need to be simultaneously met by the company. Also provided to the Tribunal were copies of the customer service and complaints policy, store safety policy and procedure, store operation and management guide, dress standards policy, customer relations, store standards, copies of checklists, recruitment procedures, cleanliness policies and a list of stores with an indication of the stores for which the position will be responsible.

22. The Tribunal has carefully considered all of the evidence before it as follows.

    Position must be genuine

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

24. The applicant nominated the occupation of Customer Service Manager – 149212.

25. In assessing whether the position associated with the nominated occupation is genuine, that is whether the position nominated can be accurately described as a Customer Service Manager, the Tribunal has had regard to the indicative skill level and tasks for that occupation as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) – 1492. The Tribunal considers that a position in the occupation of Customer Service Manager would involve the type and range of tasks at the level indicated in the ANZSCO.

26. The ANZSCO sets out the indicative skill level and tasks for a Customer Service Manager as follows:

    UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS
    
    CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.

    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:

    odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    oensuring operational efficiency within a call centre

    oproviding direction and feedback to team members and assisting with recruitment

    omanaging, motivating and developing staff providing customer services

    oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

    oliaising with other organisational units, service agents and customers to identify and respond to customer expectations

    omay work in a call centre

    
    Occupations:

    149211 Call or Contact Centre Manager
    149212 Customer Service Manager

    
    
    149212 CUSTOMER SERVICE MANAGER
    
    Alternative Titles:

    Client Service Manager
    Service Manager

    
    Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
    Skill Level: 2

27. The Tribunal acknowledges that the position of customer service manager is not limited to businesses that operate call or contact centres. The Tribunal referred to these types of businesses at the hearing as it was part of the ANZSCO description for the nominated occupation and to demonstrate the nature and types of operations envisaged by the ANZSCO in classifying the nominated occupation, including the skills level and types of tasks involved in carrying out a position that would be classified as customer service manager.  

28. The Tribunal acknowledges that in the written submissions and in Mr Ahmad’s oral evidence it was indicated that the position involves developing and reviewing policies programs and procedures regarding customer service, managing and motivating staff, providing feedback to the front line staff, training and recruitment. While these duties appear to align with the tasks set out in the ANZSCO tasks included for the occupation of customer service manager, the Tribunal is not satisfied, given the nature of the business’ operations and the evidence regarding how the duties are carried out on a day to day basis as described by Mr Ahmad, that the position, which the Tribunal accepts is an important position within the applicant’s business, can be accurately described that of a customer service manager.

29. The evidence before the Tribunal indicates that the position will involve implementing established policies and procedures which have already been developed by the applicant and Crown Plaza, including the customer service and complaint standards, safety procedures, dress standards and cleanliness, copies of which were provided to the Tribunal. The Tribunal is accordingly not satisfied that the position will actually involve developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided.

30. The actual tasks of the position as described by Mr Ahmad involve managing, training, motivating, developing and mentoring 14 front line customer service staff. The position as described involves training staff on how to deal with the top ten complaints and handling negative feedback, product satisfaction and ultimately ensuring that customers, some of which are high net worth customers for the Casino and known by name, are happy. Mr Ahmad also indicated that the position involves developing newsletters and maintaining a relationship with the top 10 customers. While these tasks involve maintaining good customer relations and ensuring customer satisfaction, the Tribunal considers that, in the context of the applicant’s business, they are carried out at a very basic level and are tasks common to many supervisory positions in businesses that provide goods and services in a retail setting. The Tribunal also acknowledges that the business serves a large number of customers, including Crown Casino’s high net worth customers, and needs a person to ensure that the customers are satisfied and that staff members are adequately trained to carry out their duties in accordance with the established policies and high standards set. However, the Tribunal is not satisfied that such tasks are sufficient to warrant classifying the position as Customer Service Manager.  

31. The Tribunal considers that customer service managers typically work in larger businesses where they can solely work on customer relations and standard of service issues, which involve planning, administering and reviewing customer services, after-sales services and maintaining sound customer relations. The Tribunal is not satisfied, on the evidence before it, that position actually involves the full range of tasks at the level described in the ANZSCO for the occupation of Customer Service Manager.

32. The Tribunal formed the view that the actual tasks involved in carrying out the position required by the applicant is more consistent with a position in the occupation in the unit group Retail Supervisors (6215) and includes the following tasks as described in the ANZSCO:

    ·ensuring that customers receive prompt service and quality goods and services

    ·responding to customers' inquiries and complaints about goods and services

    ·planning and preparing work schedules and assigning staff to specific duties

    ·interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances

    ·instructing staff on how to handle difficult and complicated sales procedures

    ·examining returned goods and deciding on appropriate action

    ·taking inventory of goods for sale and ordering new stock

    ·ensuring that goods and services are correctly priced and displayed

    ·ensuring safety and security procedures are enforced

33. Having regard to the ANZSCO descriptions of occupations, the nature of the business and actual tasks of the position as described by Mr Ahmad, the Tribunal considers the position to be more of a supervisory front line operational position rather than a managerial one. The position, in the Tribunal’s view, more accurately fits the ANZSCO descriptor of the occupation of Retail Supervisor (621511) and not the occupation of Customer Service Manager (149212) as claimed.

34. Given the above, the Tribunal is not satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine. For these reasons the requirements of r.2.72(10)(f) are not met.

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

    DECISION

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

    Rania Skaros
    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.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (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.

    (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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.