Candelori Labour Hire Pty Ltd (Migration)

This case concerned an application for review of a decision by the delegate of the Department of Home Affairs to impose a two-year sponsorship bar on Candelori Labour Hire Pty Ltd. The dispute arose from allegations that the applicant had failed to satisfy its sponsorship obligations over an extended period, including underpaying sponsored employees, failing to provide them with time in lieu entitlements in accordance with the relevant award, and allowing an employee to perform duties outside her nominated occupation. The applicant's standard business sponsorship approval had expired prior to the delegate's decision, though it held a temporary activities sponsor approval.

The court was required to determine whether the applicant had breached its sponsorship obligations under various regulations, specifically concerning the provision of equivalent terms and conditions of employment, the provision of records and information to the Department, and ensuring sponsored employees worked in their nominated occupations. A further issue was whether the applicant had provided false or misleading information at the time of nomination and whether adequate steps had been taken to rectify any breaches identified during the monitoring period. The court also had to consider the prescribed circumstances for taking action and the factors relevant to determining the appropriate penalty.

The court found that the applicant had failed to satisfy its sponsorship obligations under regulation 2.79 by significantly underpaying four sponsored employees and failing to provide them with time in lieu entitlements in a timely manner as required by the Restaurant Industry Award 2020. It was also found that the applicant breached regulation 2.86 by failing to ensure that one sponsored employee predominantly worked in her nominated occupation. While the applicant had provided information and cooperated with the monitoring process, and had engaged consultants to improve compliance, the court was not satisfied that the breaches had been adequately rectified. The court noted that the underpayments and delays in providing time in lieu entitlements were significant and occurred over an extended period.

The decision under review was varied. The court found that a two-year sponsorship bar was not appropriate in the circumstances. Instead, the court imposed a lesser penalty, reflecting the applicant's cooperation and willingness to rectify breaches, while still acknowledging the seriousness of the contraventions.