Demountable Sales and Hire Pty Ltd (Migration)

[2018] AATA 3869

Demountable Sales and Hire Pty Ltd (Migration) [2018] AATA 3869 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Demountable Sales and Hire Pty Ltd

CASE NUMBER:  1607271

DIBP REFERENCE(S):  BCC 2015/2481971 bcc2015/2481971

MEMBER:Kate Timbs

DATE:10 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2018 at 3:57pm

CATCHWORDS
MIGRATION – Employer Nomination – Approval of nomination – Incorporated and profitable business – contract of employment – small scale of business – payslip – average percentage of payroll for training – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to reject an application by Oxford Economics Australia Pty Ltd (the company) for approval of the nomination of a position in Australia under regulation 5.19 of the Migration Regulations 1994 (the Regulations).

2. The company applied for approval on 26 August 2015. The delegate rejected the application on 5 May 2016.

3. The company applied for review of that decision on 21 May 2016. The Tribunal heard the application for review on 9 April 2018.

   RELEVANT LAW

4. The relevant law is regulation 5.19 of the Migration Regulations 1994 (the Regulations). The Minister must approve the company’s nomination if it made it in accordance with regulation 5.19(2) and it meets the requirements of either regulation 5.19(3) or (4).

5. The company applied for approval of a position in the Temporary Residence Transition stream under regulation 5.19(3). To deal with the application for review, the Tribunal considered whether it meets all relevant criteria in that regulation. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

6. The Tribunal considered documents in the visa application file and those provided by the company to the Tribunal. The Tribunal heard evidence at hearing from company directors, Mr John Tannos and Ms Linda Tannos, and from Mr Jose Imaysay, the employee nominated in the approval application.

   Approval of the nomination

   The application must be compliant: regulation 5.19(3)(a)

7. The company satisfies regulation 5.19(3)(a)(i) if it made the application in accordance with regulation 5.19(2).The company paid the prescribed fee, applied for approval of the nomination on Internet Form 1395 and therefore satisfies the requirements of regulation 5.19(2) (as it was in August 2015) and (3)(a)(i).

8. The company identified Mr Imaysay in the application and his movement records confirm he held a class 457 visa when it made the application. The company therefore meets regulation 5.19(3)(a)(ii).

9. To satisfy regulation 5.19(3)(c)(iii), the company must identify an occupation in relation the position that is listed in ANZSCO with the same four-digit occupation code as the occupation carried out by Mr Imaysay.

10. The company identified the occupation of Metal Fabricator with ANZSCO code 322311, which is in the four-digit occupation code for Structural Steel and Welding Trade Workers. According to ANZSCO, workers in that group “cut, shape, join and repair metal components of iron and steel structures, boilers, pressure vessels and pipes, ships and other vessels”. Metal Fabricators are specialists who “mark off and fabricate structural steel and other metal stock to make or repair metal products and structures such as boilers and pressure vessels”.

11. Mr Imaysay has relevant trade qualifications and the company provided an employment contract signed in 2015 for him to work in the position of welder/metal fabricator. It also provided a related job description setting out main responsibilities that are consistent with the ANZCO description of the duties for the relevant occupation code and the occupation of Metal Fabricator. Mr Imaysay and Mr Tannos gave consistent evidence of Mr Imaysay’s day-to-day duties that is consistent with the ANZSCO description and position description.

12. On that evidence, the Tribunal is satisfied that the company has identified a relevant ANZSCO listed occupation and that Mr Imaysay was carrying out the occupation when it made the approval nomination and continues to do so. It therefore satisfies regulation 5.19(3)(iii).

    Status of the nominator: regulation 5.19(3)(b)

13. The Department’s records confirm the company was the Standard Business Sponsor who identified Mr Imaysay for the purpose of her 457 visa. The company therefore satisfies regulation 5.19(3)(b)(i).

14. The company is incorporated under Australian law and its profit and loss sheets show it has significant turnover and is profitable. On that basis, the Tribunal finds it actively and lawfully operates its business in Australia. It therefore satisfies regulation 5.19(3)(b)(iii). 

15. The company does not operate overseas and regulation 5.19(3)(b)(ii) is not relevant.

    Previous employment of the nominee: regulation 5.19(3)(c)

16. The company has employed Mr Imaysay in the position for which he held his 457 visa full-time since at least February 2015. He exceeds the requirement in regulation 5.19(3)(c) for previous  employment of the nominee by the applicant and the company satisfies that regulation.

    Future employment of the visa holder: regulation 5.19(3)(d)

17. The business has a fleet of demountable buildings that it sells and hires. As noted, the company is profitable and Mr and Ms Tannos said they have no intention of winding it back or selling it to another entity in the foreseeable future. It requires a team of metal fabricators to build and maintain the demountable buildings and the Tribunal infers it will continue to require a person to work in the nominated position. It also accepts the evidence they provided that they are happy with Mr Imaysay’s employment and that he is a valued employee. In that case, it is satisfied the company will employ Mr Imaysay on a full-time basis for at least two years. It therefore satisfies regulation 5.19(3)(d)(i).

18. The contract of employment provided by the company does not expressly exclude the possibility of extending the period of employment. In that case, the company satisfies regulation 5.19(3)(d)(ii).

    No less favourable terms and conditions of employment: regulation 5.19(3)(e)

19. Regulation 5.19(3)(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.

20. The company provided payslips confirming that it pays Mr Imaysay a salary of $56,000 a year. It also provides the usual benefits to Mr Imaysay in addition to his salary, including superannuation and annual leave.

21. Ms Tannos told the Tribunal that the company has little turnover in its small core workforce of six to eight people and most of them have been with them or many years. Mr Tannos said that most of them are on “slightly above award wages”. He told the Tribunal the company pays another Metal Fabricator, who is permanent resident, “a couple of dollars more an hour” than Mr Imaysay. Ms Tannos said that is because he made representations to the company for a pay rise and, after the hearing, she advised that his duties are not equivalent to those of Mr Imaysay. In particular, she stated that the other Metal Fabricator is involved in more heavy work conducted outside in the construction of the demountable buildings and that Mr Imaysay works inside the buildings to finish them. The Tribunal takes into account that the business is in the Northern Territory. It accepts that working outside in high temperatures would cause discomfort to the other Metal Fabricator and that distinguishes his duties from Mr Imaysay’s duties. It is not surprising that he would be better paid in that case and the Tribunal is satisfied that there is no Australian citizen or permanent resident performing equivalent work.

22. Ms Tannos advised the Tribunal after the hearing that the salary is “in accordance with the amount stipulated by the Department of Immigration”, which does not assist the Tribunal to determine whether the company would provide an Australian citizen or permanent resident with more favourable terms and conditions of employment. It consulted the salary guides at Payscale.com and Indeed.com and it found it was within the range of salaries. It is higher than the median for Metal Fabricators of approximately $54,000 on the former and lower than the average of approximately $64,000 on the latter. The Tribunal takes into account that the company operates a small business and infers prospective employees would not expect it to pay higher than median wages. In the circumstances, it finds that it would be unlikely to pay any other Metal Fabricator more for performing equivalent duties, whatever their immigration status.

23. In that case, the Tribunal finds that the company satisfies regulation 5.19(3)(e) because the terms and conditions of employment of 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.

    Training commitments and obligations: regulation 5.19(3)(f)

24. Regulation 5.19(3)(f) requires that, during the period of the  applicant’s most recent Standard Business Sponsorship (SBS) approval, the company has fulfilled any commitments it made and obligations that applied relating to training.  However, the Minister may disregard the requirement if it is reasonable to do so.

25. To meet its obligations, the company must have spent more than 1% of its salary on training activities specified by the Minister during each 12-month period for three years from the start of its last period of Standard Business Sponsorship on 25 August 2014.

26. The Tribunal may take account of expenditure on employment of apprentices in numbers proportionate to the size of the business and on payments to external training provided to staff members who are Australian citizens or permanent resident.

27. In the 2015 financial year, the company spent approximately $55,000 to employ apprentices during the 2015 financial year and paid approximately $15,000 to external training providers. The company did not provide detailed evidence about the external training courses and the Tribunal infers 50% of the expenditure was to train relevant staff. In that case, it spent at least 3.6% of its payroll of approximately $1,500,000. On that basis, the Tribunal finds it significantly exceeded its training obligations over the first 12-month period from August 2014 to August 2015, which largely coincided with that financial year.

28. In the 2016 financial year, the company paid apprentice wages of approximately $7,500 and paid approximately $6,500 to external training providers. Again, the Tribunal infers it paid approximately half of that for relevant staff and finds it spent approximately 8% of its payroll in that financial year. On that basis, the Tribunal finds it did not satisfy its training obligation for the second 12-month period.

29. The company did not employ apprentices in the 2017 financial year and concedes it did not spend as much as 1% of its payroll on training activities. On that basis, the Tribunal finds it did not satisfy its training obligations in the third 12-month period.

30. Ms Tannos’ said the business had two apprentices in the 2015 financial year and that one left for personal reasons and the other was not suited to the work. The Tribunal accepts the business took on the obligation to employ the apprentices for three years and accepts that it did its best to retain them for that period. If they had not left, it would have spent a similar or larger proportion of its payroll in the second and third 12-month period on relevant training activities as it did in the first. The Tribunal finds that it did its best to invest appropriately in training for the industry and the regional area.

31. The Tribunal also takes into account that the company spent more than 1% of its payroll on average over the three 12-month periods and it is satisfied that it is reasonable to disregard those obligations. The company therefore satisfies regulation 5.19(3)(f).

    No adverse information known to Immigration: regulation 5.19(3)(g)

32. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator or that it is reasonable to disregard any such information. The definition of “adverse information” in regulation 1.13A includes having been found to be in breach of a Commonwealth or State law. 

33. The Tribunal infers the Department does not have any adverse information about the company or any other relevant person because it has not provided any to the Tribunal. On that basis, the Tribunal finds the company satisfies regulation 5.19(3)(g).

    Satisfactory compliance with workplace relations laws: regulation 5.19(3)(h)

34. Regulation 5.19(3)(h) requires the company to have a satisfactory record of compliance with relevant Commonwealth and State laws relating to workplace relations. The Tribunal has no evidence of non-compliance. In the absence of such evidence, it infers it has a satisfactory record of compliance and that it satisfies regulation 5.19(3)(h).

    Conclusion

35. The Tribunal has found that the company satisfies all relevant requirements in regulation 5.19(2) and (3) for approval of the nomination of the position in Australia. In that case, it will set aside the decision under review and substitute the decision to approve the nomination.

    DECISION

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

    Kate Timbs
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.