Ace Demolition & Excavation Pty Ltd (Migration)

[2020] AATA 3966

Ace Demolition & Excavation Pty Ltd (Migration) [2020] AATA 3966 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ace Demolition & Excavation Pty Ltd

CASE NUMBER:  1722931

HOME AFFAIRS REFERENCE(S):          BCC2017/2331873

MEMBER:Katie Malyon

DATE:1 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 September 2020 at 1:46pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Construction Project Manager – identification of need to employ nominee in nominated position – increased operational activities in construction and development – exponential growth in reported turnover – task and duties of nominated position – correspond to ANZSCO description – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 and Border Protection on 8 September 2017 to refuse the application made by Ace Demolition and Excavation Pty Ltd (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 30 June 2017. 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 stream (r.5.19(3)); and, a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets all of 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) of the Regulations. Relevant provisions of the Regulations are extracted in the Attachment to this decision.

3. In this case, the Company applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.  It nominated the position of Construction Project Manager ANZSCO 133111 for Mr Abdul Allam who currently works with the Company as a Construction Project Manager. 

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because, based on the limited documentation lodged with the Department, the delegate was not satisfied that the Company had identified a need for it to employ a paid employee to work in the position of Construction Project Manager under its direct control. A copy of the delegate’s decision was provided to the Tribunal.

5. Mr Sami Allam, the Managing Director and founder of the Company (hereinafter referred to as Sami Allam), as well as Ms Nicole Anthony, the Company’s Administration Manager, appeared before the Tribunal on 28 May 2020 to give evidence and present arguments.  The Company was initially represented in relation to the review by Julian Hayden of Bardo Lawyers.  His appointment was superseded by Jonathon Trainer, also of Bardo Lawyers.  Mr Trainer also attended the hearing.  The Tribunal received notice after the hearing that Mr Trainer had moved to a new law firm and that future communications in relation to this review should be directed to the Company itself.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.  The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of the decision. 

7. By way of summary, evidence in support of the nomination application provided to the Tribunal includes:

   1)historical ASIC search of the Company and 4 of its associated entities: Ace Civil Pty Ltd (Ace Civil), Ace Employment Services Pty Ltd, Allam 1 Pty Ltd as well as Allam 2 Pty Ltd (the Ace Group).  Sami Allam is the sole shareholder and Director of all 5 companies which are hereinafter collectively referred to as the Ace Group;

   2)the Ace Group’s inter-company Management Agreement which commenced 1 July 2018;

   3)the Company’s signed Financial Reports for years ended 30 June 2015, 2016, 2017, 2018 and 2019;

   4)a letter from Matthew Thorncroft of Boroughs Chartered Accountants dated 31 January 2020 in relation to the delayed preparation of Financial Reports for the Company and Ace Civil for the year ended 30 June 2019 due to the lodgement date of respective tax returns being 12 February 2020 and 15 May 2020;

   5)Independent Auditor’s Reports dated, respectively, 1 March 2019 and 20 December 2019 in relation the Company’s Financial Reports for years ended 30 June 2017 and 2018 signed by Auditor Andrew Hunt;

   6)Tax Returns for the Company as lodged with the Australian Taxation Office (ATO) for the years ended 30 June 2017, 2018 and 2019;

   7)Income Tax Lodgement Status Report from the ATO confirming lodgement history of the Company’s tax returns;

   8)Business Activity Statements (BAS) for the Company the years ended 30 June 2018, 2019 and 2020;

   9)Organisation Chart for the Ace Group showing its multiple business units within the Administration, Construction and Operations Divisions, the nominated position of Construction Project Manager and the names of all employees;

   10)information to demonstrate there is a genuine need for the Company to employ a paid employee in the role of Construction Project Manager including:

   a)Statement from the Company addressing the genuineness of the position and the need for the nominee to be employed permanently in the role;

   b)Schedule of work in progress for Tenders awarded during the period September 2019 - January 2020; and,

   c)Schedule of Tenders lodged in the period September 2019 to January 2020;

   11)copy of the Company’s contract of employment with the nominee dated 29 May 2020;

   12)PAYG Payment Summaries provided to the nominee for the years ended 30 June 2017, 2018, 2019 and 2020;

   13)weekly payslips for nominee Abdul Allam for the period 28 May 2020 – 3 June 2020 and 2 July 2020 – 8 July 2020;

   14)evidence of payment of superannuation to Abdul Allam’s superannuation fund Cbus since commencement of his employment with the Company in late May 2014;

   15)evidence demonstrating the terms and conditions of the nominee’s employment will be no less favourable than those that are provided, or would be provided to, an Australian citizen or permanent resident performing equivalent work at the same workplace at the same location including weekly payslips for the Company’s Senior Construction Project Manager, Mr Manuf Al Sarray, for the periods 4 June 2020 - 10 June 2020 and 2 July 2020 – 8 July 2020  as well as his contract of employment with the Company in that role and information from the joboutlook.gov.au website in relation to the position;

   16)evidence of Mr Al Sarray’s Australian citizenship granted 12 June 1979;

   17)information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO); and,

   18)evidence of the Company’s recent expenditure on training including a Payroll Activity Report for the year ended 30 June 2020, multiple invoices addressed to the Company and some related remittances confirming payment of those invoices.  Also received but not considered were some invoices addressed to Ace Civil and 2 invoices personally addressed to 2 of the Company’s employees (Sami Allam and Taha El Hassan) as well as remittances confirming payment of those invoices.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the Company meets the requirements for approval of its nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations. For the nomination to be approved, all of the requirements must be met.

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

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

10. On the basis of information in the Department’s file, the Tribunal is satisfied that nomination application was made using the relevant on-line form and was accompanied by the prescribed fee. The relevant certification in s.245AR(1) of the Act was provided in the application form. Accordingly, r.5.19(4)(a)(i) of the Regulations is satisfied.

11. As noted above, the delegate found r.5.19(4)(a)(ii) of the Regulations was not satisfied because, based on the limited evidence lodged in support of the application, the delegate was not satisfied that the Company’s nomination identified a need to employ Mr Allam in the position of Construction Project Manager under the nominator’s control. The Tribunal has been provided with extensive evidence to address this criterion.

12. Sami Allam gave oral evidence at the hearing that the Company has operated in Sydney’s construction industry since he established the business in 2004:  in all, he spent 23 years working in the construction industry in Sydney.  He said the Company and its associated entities maintain corporate clients that include the industry’s leading Tier 1 and 2 builders, international developers and Local Governments.  As a full‐service early works contractor, the Company has worked on projects in all industries and sectors - both public and private - completing projects that include schools, federally funded hospital projects and high‐rise residential construction projects. 

13. Evidence was provided that the Company and its associated entities in the Ace Group currently has 155 employees working in management, engineering, technical, administrative and operational positions.  Of these, 143 are Australians and 12 are foreign employees.  The Company’s corporate head office in Regents Park includes a fully functional service workshop, yard facility and a fabrication workshop.  The Administration office there houses an Estimation Team which is dedicated full‐time to tendering for, and securing, future contracts.  Further, the Company holds pre‐qualification status with numerous builders and is a preferred contractor for a majority of the Company’s corporate clients. 

14. In recent years, the Company has broadly diversified the range of services it offers and now delivers a full range of construction services through the Company’s building licence.  The contract value now ranges from $500,000 to $15 million with a typical project running from 1 - 6 months and construction projects running at least 12 months.  As at the time of the hearing, the Company was working across 88 job sites offering a range of products,

    processes and services, which include:

    oDemolition ‐ asbestos removal, contaminated material removal, chemical demolition, underground petroleum storage systems (UPSS), post‐tensioned and pre-cast concrete structures, bulk and detail demolition;

    oEarthworks / Civil Works ‐ excavation in rock and rock sawing, all civil earthworks and civil structures / forms, remediation works, contaminated material removal;

    oPiling ‐ bored piles; sheet piles, continuous flight augering (CFA) piles;

    oRetention / Shoring Systems ‐ contiguous pile retaining walls, secant pile walls, sheet pile walls, soldier piles, capping beams, shotcrete walls, whalers and anchor installations; and, 

    oConstruction & Development ‐ multi‐level commercial and industrial construction, multi‐level / high‐rise residential construction, mixed use developments.

15. Sami Allam informed the Tribunal that revenue has almost doubled from just over $54 million in the year ended 30 June 2015 to $98 million in the year ended 30 June 2019.  For the period September 2019 to January 2020, the total value of the Ace Group’s work in progress amounted to $102.7 million and, in the same period, it tendered for work valued at $184.2 million.  There were 48 new individual projects during that period alone.  A Schedule of the projects currently being undertaken was provided to the Tribunal together with a Schedule of Tenders lodged in the period September 2019 to January 2020. 

16. Further, Sami Allam told the Tribunal that the Company’s increased operational activities in construction and development have resulted in it experiencing exponential growth in reported turnover and, as a consequence, the need to engage multiple Construction Project Managers to support its existing Construction Project Manager, Mr Al Sarray.  Each of the Construction Project Managers is responsible for approximately 10 projects.

17. The Company submits that, as confirmed by the Financial Reports including the Auditor’s reports, its financial performance is stable and secure.  Assets as at 30 June 2019 have grown to in excess of $48 million with net assets of $33 million.  Sami Allam informed the Tribunal that, effective 1 July 2019, all contracted revenue has been recorded against the associated entity, Ace Civil, of which he is also the sole shareholder and Director.  Pursuant to the Management Services Agreement referred to above, the Company has been appointed by all companies in the Ace Group as Manager of the businesses of the Ace Group of companies. 

18. The Tribunal notes that Departmental records confirm that nominee Abdul Allam currently holds a Bridging B visa with no conditions.  Previously, he was sponsored by the Company to work as a Drilling Rig Operator.  Following expiry of his Subclass 457 visa sponsored by the Company on 9 April 2018, nominee Abdul Allam has continued to work with the Company and is currently employed in the position of Construction Project Manager.  Since Abdul Allam has unrestricted work rights following expiry of this Subclass 457 visa pending the Tribunal’s decision in relation to the Company’s nomination, he is permitted to undertake this role.  The Tribunal accepts that Mr Allam’s current engagement in this role further demonstrates the Company’s need to employ him as a Construction Project Manager..

19. Having regard not only to documented financial growth of the Company and that of its associated entities as reflected in the ongoing and strong demand for its construction services as well as nominee Abdul Allam’s current engagement as a Construction Project Manager, the Tribunal is satisfied that the nomination has identified a need for the Company to employ a paid employee to work in the position of Construction Project Manager under the Company’s direct control and that the nomination application meets this requirement. Accordingly, r.5.19(4)(a)(ii) of the Regulations is satisfied.

20. Given the Tribunal’s findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(a) overall are therefore met.

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

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

22. Based on evidence provided, the Company has been registered with ASIC since 22 January 2004 and Sami Allam also operates a number of associated entities which are also registered with ASIC. The Tribunal has received the current Organisation Chart for the Ace Group and a Management Services Agreement for the Company. On the basis of documentation provided - including Financial Reports, BAS, the Company’s tax returns - the Tribunal is satisfied that the Company is actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) of the Regulations is met.

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

23. 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. 

24. The Tribunal has considered the terms of the contract of employment made between the Company and nominee Abdul Allam dated 29 May 2020 provided to the Tribunal. The contract provides for Mr Allam’s direct employment by the Company in the role of Construction Project Manager. Accordingly, the requirement in r.5.19(4)(c) of the Regulations does not apply in the circumstances of this case.

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

25. 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. 

26. The Tribunal has regard to the signed contract of employment dated 29 May 2020.  Based on the terms of the contract and oral evidence from Sami Allam, the Tribunal is satisfied the nominee will be employed on a permanent and ongoing basis in the position of Construction Project Manager.  The Tribunal has also had regard to the financial documentation referred to above, the overview of the Ace Group’s business and the Company’s ability to fund the nominated position for a period of at least 2 years.  Having regard to this information, the Tribunal finds that the nominee will be employed by the Company in the nominated position on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of an extension.

27. Accordingly, the requirement in r.5.19(4)(d) of the Regulations is met.

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

28. 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.

29. The Tribunal has regard to the contract of employment dated 29 May 2020 which indicates that nominee Mr Allam will be paid $182,001 p.a. plus superannuation.  The Tribunal has received payslips for Abdul Allam for the periods 28 May 2020 – 3 June 2020 and 2 July 2020 – 8 July 2020 confirming that he is currently being paid at this rate whilst working in the role of Construction Project Manager.  In addition, the Tribunal has had regard to the salary of the Senior Construction Project Manager employed by the Company, Mr Al Sarray, who is an Australian citizen.  Mr Al Sarray receives $182,001 per annum plus superannuation as confirmed by his payslip for the periods 6 June 2020 – 10 June 2020 and 2 July 2020 – 8 July 2020 as well as his contract of employment with the Company lodged with the Tribunal. 

30. Information regarding the market salary rate for the nominated position of Construction Project Manager has also been provided to the Tribunal.  Included is an extract from the Australian Government‘s Job Outlook website which confirms that the weekly salary for this position in Sydney is $3,450 which equates to an annual salary of $179,400.[1]

    [1] >

    Having regard to documentation provided, including the contract of employment dated 29 May 2020, the payslips for nominee Abdul Allam and Mr Al Sarray as well as the extract from the Job Outlook website, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same work place at the same location.

31. Accordingly, the requirements of r.5.19(4)(e) are met.

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

1. 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 r.1.13A and r.1.13B of the Regulations.

2. There is no evidence before the Tribunal to suggest that there is any adverse information known about the Company, any other companies in the Ace Group or Director Sami Allam. As such, the requirements of r.5.19(4)(f) of the Regulations are met.

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

3. 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.

4. There is no evidence before the Tribunal to suggest that the Company does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.

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

5. Regulation 5.19(4)(h) contains 2 alternative requirements. The requirements of r.5.19(4)(h)(ii) relate to nomination applications made under the Regional Skilled Migration Scheme for positions in regional Australia. The Company’s nominated position is not located in regional Australia: rather, it is located in metropolitan Sydney. As such, r.5.19(4)(h)(i) of the Regulations applies in this case. This requires not only that 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 the relevant legislative instrument IMMI 17/040 also that training requirements specified in IMMI 13/030 have been met.

6. The contract of employment dated 29 May 2020 states that the nominee will be based at the Company’s head office in Regents Park but that he will be regularly required to travel away to various construction sites to carry out his duties.  As the Company only operates in Australia, the Tribunal accepts that the nominated position will be performed in Australia.

7. Nominee Abdul Allam’s contract of employment dated 29 May 2020 contains a detailed position description for the nominated position of Construction Project Manager.  This is one of the occupations specified in IMMI 17/040.  ANZSCO states that a Construction Project Manager is required to plan, organise, direct, control and coordinate the construction of civil engineering projects, buildings and dwellings, and the physical and human resources involved in building and construction.[2]  It identifies 11 tasks for Unit Group 1331 Construction Managers which includes the nominated occupation of Construction Project Manager ANZSCO 133111.

   [2] >

   The former representative provided a Table setting out the tasks of a Construction Project Manager identified in ANZSCO and aligns the duties of the nominated position to those 11 tasks.  He also indicates the amount of time to be devoted by the nominee to the relevant duties.  The representative’s Table is set out below.

   Table – ANZSCO 1331111 and duties of the Company’s Construction Project Manager
   
   

ANZSCO task	Duties of the nominated position	% time
1.	Interpreting architectural drawings and specifications	·     Interpreting drawings and specifications ·     Interpreting plans, regulations and codes of practice	5%
2.	Coordinating labour resources, and procurement and delivery of materials, plant and equipment	·     Organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities ·     Prepare steel schedule for vendor order based on fabrication requirements of cages per the specifications and structural drawings ·     Supervise reinforced cage fabrication on site and ensure compliance to specifications and structural drawings	12.5%
3.	Consulting with Architects, Engineering Professionals and other professionals, and Technical and Trades Workers	·     Coordinate and consult with all relevant parties, Councils and other local authorities, clients, PCs and developers	10%
4.	Negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget	·     Negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget ·     Prepare and submit variations, progress claims and extension of time claims	12.5%

5.	Preparing tenders and contract bids	·     Assist with the preparation of tenders and contract bids and participate in Tender Interviews and Kick Off Meetings ·     Studying architectural and engineering drawing and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control ·     Calculating costs and estimating timescales ·     Project Costing and Budgeting	10%
6.	Operating and implementing coordinated work programs for sites	·     Prepare and implement Inspection Test Plans, Piling Schedules, etc and record finished levels and/or specifications and facilitate handover of finished areas ·     Preparing preliminary sketches, working drawings and specifications ·     Coordinating work programs ·     Supervise and manage Site Performance, Site Supervisors, Site Engineers, Civil Engineers and all other site personnel and crews ·     Site Management ·     Create, implement and manage Construction Programs	15%
7.	Ensuring adherence to building legislation and standards of performance, quality, cost and safety	·     Conducting quality assurance, HSE and Environmental ·     Working with the safety team to ensure safe work site ·     Interpret plans, regulations and codes of practice ·     Inspecting work and materials for compliance with specifications, regulations and standards ·     Attend or safety committee meetings, subcontractor meetings and project progress meetings as required and participate as relevant	10%
8.	Arranging submission of plans to local authorities	Done by Contract Administrators	0%
9.	Building under contract, or subcontracting specialised building services	·     Negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget ·     Oversee the construction of piling and shoring structures including Foundation Piles, Shoring Piles, Contiguous Piles and anchors, Capping Beams, Whalers and Shotcrete walls	15%
10.	Overseeing the standard and progress of subcontractors' work	·     Inspect civil structures such as Footings, Lift Pits, OSD Tanks, Piles and other in-ground structures, to ensure built to specification prior to concrete installation ·     Engage subcontractors and suppliers to undertake works including preparation of contract documents and collation of insurance and licensing ·     Review and approve Safety, Environment and QA submissions received from subcontractors ·     Approve subcontracts to claims for payment based on validated works, including Payment Schedules	7%
11.	Arranging building inspections by local authorities	·     Conducting site inspections and construction quality assessments ·     Arrange for all notifications and inspections with regulators and local authorities	3%

1. All tasks set out in the position description attached to nominee Abdul Allam’s contract of employment dated 29 May 2020 are included in the representative’s Table above apart from the task of ‘Allocating resources, materials and contractors’.  This appears to the Tribunal to be an oversight by the representative: however, in the opinion of the Tribunal, this task is referrable to the second task referenced in ANZSCO of ‘Coordinating labour resources, and procurement and delivery of materials, plant and equipment’.  The Tribunal accepts this omission by the representative was an inadvertent oversight.  Further, the Tribunal notes that the task in ANZSCO of ‘Arranging submission of plans to local authorities’ is undertaken not by the Company’s Construction Project Manager but, rather, its Contract Administrators.  The Tribunal accepts that this is more an administrative rather than managerial task and, as such, delegation of this particular task to a Contract Administrator is not inconsistent with the duties of the position of Construction Project Manager. 

2. Based on evidence provided including Sami Allam’s oral evidence at the hearing and having regard to the tasks of a Construction Project Manager as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position of Construction Project Manager with the Company correspond to the occupation of Construction Project Manager ANZSCO 133111. 

3. As the Company has operated for a period greater than 12 months, r.5.19(4)(h)(i)(B)(I) of the Regulations requires the Company to demonstrate that it has met either Training Benchmark A or B set out in IMMI 13/030. This requires evidence of:

   A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.

   OR

   B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

   Expenditure that can count towards this benchmark includes:

   ·     paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

   ·     funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

   ·     employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

   ·     employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

   ·     evidence of payment of external providers to deliver training for Australian employees

   ·     on‐the‐job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

   othe learning outcomes of the employee at each stage;

   ohow the progress of the employee will be monitored and assessed;

   ohow the program will provide additional and enhanced skills;

   othe use of qualified trainers to develop the program and set assessments; and

   othe number of people participating and their skill/occupation.

4. The Company has provided evidence of its payroll (wages of $2,739,289 and superannuation at 9.5% of $260,232) totalling $2,999,521 for the year ended 30 June 2020.  It has also provided a large number of invoices and remittance advices as evidence of its commitment to training.  Invoices which have been addressed to the Company and the associated remittance advices total $45,865 for the year ended 30 June 2020.  Training has been provided by Sydney Stubbies to the Company’s employees working on construction sites (including courses on asbestos awareness, working at heights, risk management for supervisors, coronavirus readiness), Finnerty Civil Group and HSE Height Safety Engineers.  As noted above, the Tribunal has not considered the invoices addressed to associated entity Ace Civil or 2 of the Company’s employees (Sami Allam for Absolute Education’s NSW Building Owner course and Taha El Hassan’s TAFE course).  Nor has it considered invoices which have not been matched with a remittance advice including invoices issued by GetSafeTraining or those labelled COD (cash on delivery).  Further, it has not considered invoices which identify that the beneficiaries of training paid for by the Company were employees of businesses within the Ace Group other than the Company.

5. Based on evidence provided, the Tribunal finds that the Company has spent at least 1% of its payroll - that is, at least $29,995 - on training its Australian citizens and permanent resident employees. As a result, it meets the requirements of demonstrating its recent expenditure on training meets Training Benchmark B as required by IMMI 13/030 and r.5.19(4)(h)(i)(B)(I) of the Regulations.

6. Accordingly, the requirements of r.5.19(4)(h) of the Regulations are met.

   Conclusion

7. Based on the cumulative findings above, the Tribunal is satisfied that the Company meets all of the requirements of r.5.19(4) of the Regulations for approval of the nomination of the position in Australia.

   DECISION

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

   Katie Malyon

   
   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

   (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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 specified by the Minister in an instrument in writing for this sub-subparagraph;

   (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).

   oOOo

   
   

opendocument