Derby Industries Pty Ltd (Migration)

[2023] AATA 3948

Derby Industries Pty Ltd (Migration) [2023] AATA 3948 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Derby Industries Pty Ltd

REPRESENTATIVE:  Mrs Margaret Taaffe

CASE NUMBER:  2016289

HOME AFFAIRS REFERENCE(S):          BCC2020/2225719

MEMBER:Namoi Dougall

DATE:21 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2023 at 12:50pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Labour Agreement stream – Skilled Meat Worker – Party to a Labour Agreement – requirements of the labour agreement have been met – 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 Home Affairs on 19 October 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 2 September 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Labour Agreement stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b)(i) as at the time of there was no Labour Agreement between the applicant and the Department in effect.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg.5.19(14), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)

1. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

   ·be made in accordance with approved form 1395 (Internet);

   ·identify the position;

   ·identify a person in relation to the position;

   ·identify an occupation in relation to the position,

   ·identify the subclass and stream to which the nomination relates;

   ·be accompanied by the fee mentioned in reg 5.37; and

   ·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

2. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

3. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. In the circumstances of this review, the application was made on 2 September 2020 and the subclass identified in the application is a Subclass 186.

4. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position of Skilled Meat Worker was identified, a person (Mr Dongjn Zheng) was identified in relation to that position. An occupation in relation to the position was identified Skilled Meat Worker (ANZSCO 070499) as was the subclass and stream to which the nomination relates (subclass 186 visa and Labour Agreement nomination stream). The nomination was accompanied by the applicable training contribution charge (as per reg 5.37). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant.

5. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

No adverse information known to Immigration – reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

2. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

   ·has contravened a law of the Commonwealth, a State or a Territory, or

   ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

   ·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

   ·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or

   ·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

3. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

   ·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or

   ·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or

   ·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or

   ·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,

   ·one is or was able to exercise influence or control over the other, or

   ·a third person is or was able to exercise influence or control over the both of them.

Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

1. On 15 May 2023, the applicant was issued by Australian Border Force (ABF) with an Invitation to Comment on identified breaches of sponsorship obligations, r.2.89 and on 22 August 2023 a decision was made. The sponsorship obligations found to have breached were r.2.84 obligation to provide information to Immigration when certain events occur; and r.2.86 obligation to ensure primary sponsor person works or participates in nominated occupation, program or activity.

2. In relation to r.2.84 the applicant had failed to notify the Department of a change of directors.

3. In relation to r.2.86 the applicant had designated two overseas workers as team leaders. It was accepted that the two workers still performed the tasks of a Skilled Meat Worker and that they did not have other workers report to them, but the delegate found that they were performing additional tasks beyond those listed in the labour agreement. There were additional tasks performed in the value adding room.

4. The delegate concluded that the applicant had breached r.2.84 on two occasions and r.2.86 on one occasion. However, the delegate concluded that in this instance no action would be taken.

5. The circumstances set out in the decision is adverse information. However, in light of the delegate’s decision not to take any action the Tribunal is satisfied that it is reasonable to disregard any such information.

6. Therefore, the Tribunal is satisfied that reg 5.19(4)(b) is met.

Mandatory licencing, registration and memberships – reg 5.19(4)(c)

1. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

2. In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Skilled Meat Worker, and the date of the application is 2 September 2020.

3. There is no information or evidence before the Tribunal that the nominated position requires mandatory licencing, registration or membership. Therefore, the Tribunal is satisfied that reg 5.19(4)(c) is met. Satisfactory compliance with employment laws - reg 5.19(4)(d).

Satisfactory compliance with employment laws - reg 5.19(4)(d)

1. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

2. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with employment laws, therefore, the Tribunal is satisfied that reg 5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)

1. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

2. There is no information or evidence that the applicant has any debt due as mentioned in s 140Z of the Act. Therefore, the Tribunal is satisfied that reg 5.19(4)(da) is met.

Labour agreement – reg 5.19(14)

1. Regulation 5.19(14) contains a number of requirements relating to labour agreements, including that:

   ·the nominator is a party to a labour agreement: reg 5.19(14)(a)

   ·the labour agreement is in effect, and specifies the occupation as one in relation to which a position may be nominated for the purposes of reg 5.19: reg 5.19(14)(b)

   ·if the labour agreement specifies requirements that must be met by a party to the labour agreement – the requirements of the labour agreement have been met: reg 5.19(14)(c)

   ·the number of nominations approved by the Minister on application by the nominator under reg 5.19 is less than the number of approved nominations permitted under the labour agreement for the year: reg 5.19(14)(d)

Party to a Labour Agreement

1. On 28 October 2021, the Department wrote to the applicant advising that the labour agreement with the applicant had been signed by all parties and is in effect. A copy of the labour agreement was attached to the letter. Therefore, the Tribunal is satisfied that the applicant as nominator is a party to a labour agreement.

2. The Tribunal is also satisfied that the labour agreement is in effect and specifies the occupation of Skilled Meat Worker which is one in relation to which a position may be nominated for reg 5.19.

3. Accordingly, the applicant meets the requirements if reg.5.19(14)(a) and (b).

Requirements of the labour agreement have been met

1. There are a number of nomination requirements set out in the body of the labour agreement and the schedules which will be dealt with in turn below.

   Clause 6.1

2. Clause 6.1 of the labour agreement requires the applicant as sponsor to only nominate overseas workers for visas and occupations that are outlined in Schedule 2 up to the nomination ceiling in Schedule 2 and the occupation it to be performed in a location listed in Schedule 2.

3. The visas set out in Schedule 2 included Employer Nomination Scheme (ENS) visas and the occupation was skilled meat worker. The nomination ceiling for ENS visas was stated to be 0 and the location was stated to be Woorooloo, Western Australia (WA), 6558. However, by Deed of Variation agreed and signed by the Department and the applicant on 7 August 2023 the location was varied to Wundowie, WA, 6560 and the nomination ceilings for ENS visas were as follows:

Year 1	Year 2	Year 3	Year 4	Year 5
17	17	15	15	80

1. In the circumstances of the applicant applied to be approved under the ENS and the related visa referred to in the nomination application was a Subclass 186 and the nominated position was Skilled Meat Worker. The location is Wundowie WA.

2. In relation to the occupation item 2 to Schedule 2 sets out the occupation tasks of a skilled meat worker. The Department was provided with a position description and the Tribunal is satisfied that the nominee’s tasks align with those set out in item 2.

3. As the labour agreement was entered into on 28 October 2021, it is in Year 2 and the ceiling is 17. The applicant has confirmed in a letter dated 5 September 2023 that:

   ·From October 2021 to October 2022, there were no nominations.

   ·From October 2022 to date, three nominations have been approved.

   ·Currently, there are 12 applications for review of nomination refusals before the Tribunal.

4. If the Tribunal sets aside all of the applications for review of the nomination refusals before it, the total number of nomination applications that could be approved would total 15 which is less than the 17 limit. Accordingly, the applicant has met the requirements of clause 6.1 of the labour agreement.

5. Clauses 6.2 and 6.3 do not contain any requirements to be met by the applicant.

   Clause 6.4

6. Clause 6.4 requires that, before the nominee is nominated, the applicant as sponsor recruits suitably skilled Australians who are available, and the overseas nominee will be able to meet any requirements in Schedule 4.

7. Provided to the Tribunal on 23 August 2023 was a submission from the applicant’s representative (the submission) and supporting information, including a letter from Ms Kelly Mackenzie, General Manager, People, Culture and Capability with Craig Mostyn Group (CMG), the applicant is part of the group (the workforce letter). The workforce letter addresses the issues of workforce composition and reliance on overseas skilled workers and states the following:

   ·     The applicant operates an abattoir and meat processing facility in Wundowie, WA, 6560. The applicant meat processing plant produces pork products for supermarket, butchers, small goods producers in WA and international clients.

   ·     The applicant requires 458 employees to operate at full production and 344 of those employees require specialist knife skills to perform their roles. Currently there are 168 overseas workers on short-term visa working for the applicant which is 37% of the workforce on the site.

   ·     In relation to the reliance on overseas workforce the workforce letter stated that the applicant’s reliance has remained steady. However, during a period of monitoring by Australian Border Force (ABF) the applicant was not able to process any visas which has severely impacted the applicant’s ability to operate at full production.

   ·     The applicant has tried to recruit skilled workers living and working in Australian but have been unsuccessful due to the remote location and the limited number of Australian workers with the relevant skills. As of 31 July 2023, there were 39 vacancies for skilled knife hands that the applicant has not been able to fill with local labour.

   ·     The applicant has established a traineeship program to support employment of unskilled workers who can be trained to develop their skills. However, the location has limited the applicant’s ability to recruit the required numbers.

8. Also provided were letters of support from Stacey Mckenna, General Manager, Workforce Services, Australian Meat Industry Council dated 6 June 2023 (the meat industry letter) and Ms Tanya Pittard, Policy Director, Australian Pork Limited (the pork industry letter).

9. The meat industry letter stated as follows:

   ·     It was noted that CMG needed skilled meat workers to meet business production demands and that employing additional skilled meat workers would generate employment for Australian labour at its processing facilities.

   ·     ABS statistics published in August 2022 indicated that the number of Meat Boners and Slicers, and Slaughterers (ANZSCO 8312) in Australia were 4,100 which was half the numbers for 2019 and lowest on record. A chart showing the reduction in number of various meat workers was included. An article was also provided as to the shortage of meat workers in WA.

   ·     In relation to the applicant’s pork processing facility, the author of the letter had inspected the site on 1 June 2023 and stated that the staff shortages were evident. Multiple workstations were boners and slicers would have worked were vacant. The shortage of skilled workers also affected the number of unskilled workers employed.

   ·     The applicant had arranged for 53 skilled workers from the Philippines to come to work on Subclass 400 visas. However, the applicant is unable to continue with their employment due to a policy decision.

   ·     The work force letter referred to the applicant being monitored and if the process was not resolved quickly then the workers would be employed by other meat processing organisations.

10. The pork industry letter stated as follows:

    ·     Skilled meat workers from overseas are needed urgently to supplement the applicant’s Australian workforce.

    ·     The importance of agriculture to Australian economy and ensuring food security was highlighted during the COVID-19 pandemic. The domestic pork industry is vital part of the Australian food chain with pork the second most consumed meat. Australia also meets demand for pork in international markets.

    ·     CMG is one of Australia’s leading diversified food and agribusiness companies and an important contributor to the pork industry. The company is a significant employer in the sector.

    ·     CMG includes the applicant which is WA’s largest integrated pork supplier servicing customers domestically and overseas. It is the largest exporter of pork in Australia.

    ·     Labour and skills shortages remain a key business constraint in the Australian pork industry. The applicant has a critical short of skilled labour for more than 12 months. Therefore, access to skilled meat workers visa labour agreement is vital to avoid negative impacts on the applicant.

    ·     The letter referred to the ABS statistics on the skilled meat workers being half the number for 2019 and stated that the skills shortages exist despite proactive, ongoing efforts by industry to deliver education and outreach programs, attraction and retention initiatives, staff development and persistent recruitment efforts, as well as, broader community support.

    ·     Labour shortages impede the industry’s economic contribution and can pose a risk to safety standards, animal care and biosecurity. The pork industry relies on business continuity through its supply chain. Restrictions on processing capacity can impact on producers and pose risks to high standards of animal welfare.

1. Provided to the Tribunal was a summary of labour market testing for twelve advertisements from January to August 2023. Out of 190 applications only four were employed. The reasons provided included: not having relevant skills; not willing to travel to Wundowie; or requiring sponsorship.

2. On the above the Tribunal is satisfied that the applicant has made considerable effort to employ Australian workers including through advertising and internal training. The Tribunal is also satisfied, particularly on the ABS statistics, that there is a shortage of skilled meat workers. The Tribunal is also satisfied that the applicant, before the nominee is nominated, has recruited suitably skilled Australians who are available has met the requirements of clause 6.4(a).

   Clause 6.4(b) and Schedule 4

3. Item 1 of Schedule 4 relevantly requires that an overseas worker has been assessed and verified by a MINTRAC registered assessor or an assessor approved by the Commonwealth, to have a minimum skill level commensurate with the MINTRAC referenced AQF Certificate III in meat processing. Further the overseas worker must demonstrate a minimum of three years skilled work experience or have been working in Australia on a Subclass 457 or Temporary Skill Scheme visa at an Australian meat processing establishment for at least nine months prior to nomination.

4. Provided to the Department on the nominee’s file is the nominee’s Certificate III in Meat Processing (Boning Room) awarded by the Australian Skills Management Institute on 21 December 2015. The College is a national provider, and the qualification was an Australian Qualifications Framework qualification.

5. Provided to the Tribunal was an employment confirmation dated 5 August 2020 which stated that the nominee was employed in a permanent full time position as a skilled meat worker under a Subclass 457 visa from 21 November 2016. Departmental records indicate that when the nominee commenced work with the applicant, he held a Subclass 457 visa granted on 1 October 2016.

6. On the evidence, the Tribunal is satisfied that the nominee has the relevant qualifications. The Tribunal is also satisfied that the nominee worked while holding a Subclass 457 visa for least 3 years at the applicant’s meat processing enterprise prior to the nomination application being lodged as required by item 1 of Schedule 4.

7. Item 2 of Schedule 4 relevantly requires that an overseas worker who has not undertaken an IELTS test has demonstrated that they have functional English. Functional English is defined in the relevant legislative instrument IMMI 15/004 in relation to PTE Academic tests to be an overall and score of 30. Provided to the Department was an PTE test score report for a test undertaken on 14 January 2019 by the nominee and the nominee achieved an overall band score of 41. Therefore, the Tribunal is satisfied that the nominee met the requirements of item 2 of Schedule 4.

8. Item 3 of Schedule 3 requires that an overseas worker is under the age of 50 years. Provided to the Department was the details page of the nominee’ passport which indicated that he was born on 4 December 1989. The nomination application was lodged on 2 September 2020 when the nominee was 30 years old. Therefore, the Tribunal is satisfied that the nominee met the requirements of item 3 of Schedule 4.

9. On the above the Tribunal is satisfied that the applicant has met the requirements of cl.6.4(b).

   Clause 6.5

10. Cl.6.5 requires the applicant to aim to ensure a number of things. In any one year period overseas workers do not compromise more than a third of their workforce and the applicant’s reliance on overseas workers decreases during the life of the labour agreement. The applicant has submitted that out of 458 employees, 168 are overseas skilled workers which represent 37% of the workforce which is more than third. However, the Tribunal has found above that the applicant has made considerable effort to employ Australian workers including through advertising and internal training and that there is a skills shortage. The Tribunal is satisfied, on the evidence in relation to the applicant’s efforts to recruit Australian workers, that the applicant’s aim is that in any one year period overseas workers do not compromise more than a third of their workforce and the applicant’s reliance on overseas workers decreases during the life of the labour agreement.

11. Cl.6.5 also requires the applicant will ensure that the applicant’s reliance on temporary visas decreases where existing temporary visa holders have successfully transitioned to permanent residence under the labour agreement. The applicant has lodged 15 nomination application with associate Subclass 186 visa applications. All of the nominees previously held Subclass 457 visas. Therefore, the Tribunal is satisfied that the applicant’s aim is that their reliance on temporary visas decreases where existing temporary visa holders have successfully transitioned to permanent residence under the labour agreement.

12. Accordingly, the applicant has met the requirements of cl.6.5 of the labour agreement.

    Clause 6.6

13. Cl.6.6 requires the applicant to meet the standard skilled visa program requirements outlined in the regulations in relation to TSMIT, Earnings and /or working hours unless varied by Schedule 2.

TSMIT and annual earnings

1. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033 compilation. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

   ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033 compilation: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 compilation (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

   ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

   ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

   ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

2. The Tribunal was provided with a copy of the Derby Industries Pty Ltd – Enterprise Agreement 2021 (the Enterprise Agreement). The nominee is classified as ‘Boning Room, level 5’ in Appendix A of the Enterprise Agreement and as at 1 July 2023, the hourly rate is $36.83 which is equivalent to $72,776.08 per annum. The payslip referred to above confirms the hourly rate.

3. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

4. The Tribunal is satisfied that the applicant employs Australian Citizens who work in the same position at the same location and who would also be covered by the Enterprise Agreement.

5. As there are Australian equivalent workers the requirements for determining the annual market salary rate for the nominated occupation are set out in cl.7 of IMMI 18/033. As the Enterprise Agreement is the relevant instrument which applies to the Australian equivalent workers then the annual market salary rate is that which applies to them as set out in the Enterprise Agreement. Therefore, the Tribunal is satisfied that the annual market salary rate for the occupation of Skilled Meat Worker is $72,776.08.

6. Therefore, the Tribunal is satisfied that the rate is $72,776.08 and it has been determined by the applicant in accordance with the relevant instrument. Further, the Tribunal is satisfied that the nominee’s annual earnings of $72,776.08, is not less than the TSMIT and not less than the annual market salary rate or the occupation of Skilled Meat Worker. For these reasons the requirements of reg 2.72(15)(c), (d) (e)and (f) are met.

7. There is no information on the Departmental or Tribunal files that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

8. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.

9. In relation to working hours Item 3 of Schedule 2 requires the nominee to be employed in a full time position. Provided to the Tribunal was the employment confirmation dated 5 August 2020 and a payslip for the week to 23 June 2023 which indicate that the position is full time.

10. On the above the Tribunal is satisfied that the applicant has met the requirements of cl.6.6 of the labour agreement.

    Clause 6.7

11. Cl.6.7 requires the applicant to comply with the additional requirements stipulated in Schedule 3. The requirements relevant to ENS visas are item 3, 4 and 5.

12. Item 3 requires that the nominee work directly for the applicant at a meat processing enterprise and on the evidence referred to above the Tribunal is satisfied that the nominee meets those requirements.

13. Item 4 requires the overseas worker who is nominated for a Subclass 186 visa who has been employed directly for the applicant as a Subclass 457 visa holder in the nominated occupation, for at least three years before the nomination. If the overseas worker held a Subclass 457 visa before 18 March 2018, in the nominate occupation for at least three years before the nomination is made.

14. In the circumstances of this review, as referred to above, the nominee was first granted a Subclass 457 visa on 1 October 2016 and has been employed on a full time basis as a skilled meat worker since 21 November 2016. The Tribunal is satisfied that the nominee meets the requirements of item 4.

15. Item 5 requires that the applicant attach a digital photograph of the nominee with the nomination application. Provided to the Department was a copy of the details page of the nominee’s passport and, therefore, the Tribunal is satisfied that the applicant has met the requirements of item 5.

16. Accordingly, the applicant meets the requirements of cl.6.7 of the labour agreement.

17. On all of the above the Tribunal is satisfied that the applicant has met the specified requirements that must be met by a party to the labour agreement. Accordingly, the requirements of reg.5.19(14)(c) are met.

18. As referred to above, the Tribunal is also satisfied that the number of nominations the applicant has applied to be approved is less than the number permitted under the labour agreement which is 17. Accordingly, the requirements of reg.5.19(14)(d) are met.

19. Given the above findings, the Tribunal is satisfied that reg 5.19(14) is met. Accordingly, reg 5.19(4)(g) is also met.

20. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

21. Given the above findings, the Tribunal is satisfied that reg 5.19(14) is met. Accordingly, reg 5.19(4)(g) is also met.

DECISION

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

Namoi Dougall
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)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.

(2A) Paragraph (2)(aa) does not apply if:

(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

…

Labour Agreement stream—additional requirements for approval

(14)If the nomination relates to a visa in a Labour Agreement stream, the following requirements must also be met:

(a)the nominator is a party to a labour agreement;

(b)the labour agreement:

(i)is in effect; and

(ii)specifies the occupation as one in relation to which a position may be nominated for the purposes of this regulation;

(c)if the labour agreement specifies requirements that must be met by a party to the labour agreement—the requirements of the labour agreement have been met;

(d)the number of nominations approved by the Minister under this regulation on application by the nominator is less than the number of approved nominations permitted under the labour agreement for the year.