DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST (Migration)

[2019] AATA 4581

DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST (Migration) [2019] AATA 4581 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST

CASE NUMBER:  1732053

DIBP REFERENCE(S):  BCC2017/2293602

MEMBER:Karen McNamara

DATE:26 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2019 at 12:50pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Facilities Manager – training commitments and obligations – legislative changes – requirements no longer applicable – adverse information – sponsorship bar – ABF infringement notice – underpayment of wages – reasonableness to disregard the information – unintentional breach – corrective action to rectify breach – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 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 on 28 November 2017 to reject the application by Dimeo Cleaning Services (Aust) Pty Ltd ATF the DCS Trust (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 28 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the applicant did not meet their training obligations as a Standard Business Sponsor.

5. Mr James Gifford appeared before the Tribunal on 19 September 2019 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee Mr Santiago Alejandro Andrade Mayorca. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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

7. At the hearing, the applicant provided the Tribunal an organistional chart and a document titled DIMEO Employee Sponsorship Policy and Procedures.

8. At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including financial evidence of the business’s wage and salary expense for 2018 and 2019 financial years, bank statements, Workers Compensation policy details and the nominee’s Pay slips and superannuation details. 

9. On 23 September 2019, the Tribunal received copies of Workers Compensation Certificate of Currencies for the applicant’s Queensland and New South Wales entities, nominee’s payslips and bank Statements (August 2018 to September 2019), Business Activity Statement (BAS) returns May 2017 to April 2019, Employment Contract dated 23 September 2019, nominee’s Superannuation statement and NAB payment remittances showing salary payments to the nominee. 

10. 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

11. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Background

12. The applicant is a National based Cleaning Company, established approximately 38 years ago. The business was purchased by the current operator approximately twenty years ago and since has undergone considerable growth and expansion. The business specialises in all aspects of the cleaning industry including waste and sanitary management, building and facility management, maintenance and specialised and forensic cleaning services. Nationally the business employs over 3,000 staff, the majority of whom are from a migrant background. The applicant sponsored Mr Santiago Alejandro Andrade Mayorca (the nominee), for his Subclass 457 Visa, which Department records confirm that he held at the time of the nomination application.

13. Department records show that the applicant initially was approved as a standard business sponsor on 9 July 2014 until 9 July 2017. The applicant’s most recent approval as a standard business sponsor was 22 October 2018.

14. Department records show that the nominee was granted a 457 Visa on 3 October 2014. Information before the Tribunal shows that the nominee commenced employment with the applicant on a part time basis in 2012 and commenced fulltime employment in October 2014 in the position of Facilities Manager (ANZSCO 149913).

15. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

16. The Tribunal discussed with the applicant the requirements of r.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.

    The application must be compliant: r.5.19(3)(a)

17. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

18. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(3)(a)(i) are met.

19. The application for approval identifies Mr Santiago Alejandro Andrade Mayorca, who according to Department records, was granted a subclass 457 Visa on 3 October 2014 on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly the requirements of r.5.19(3)(a)(ii) are met.

20. The occupation identified in the application is Facilities Manager (ANZSCO 149913). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four digit code as the occupation carried out by the nominee whilst he held the Subclass 457 Visa. Accordingly the requirements of r.5.19(3)(a)(iii) are met.

21. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

22. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

23. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 22 October 2018 to 22 October 2023.

24. The applicant has provided to the Tribunal copies of BAS returns and financial records, recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the operation of a cleaning and facility management business. ASIC records before the Tribunal confirm that the business name is registered.

25. Based on ASIC information, financial documents, business insurance policies and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

26. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

27. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

28. Department records show that the nominee was granted a subclass 457 visa on 3 October 2014. Evidence before the Tribunal including the nominee’s PAYG summaries, Notice of Assessment’s (NOA’s), show that the nominee commenced fulltime employment with the applicant in October 2014 and has continued to be employed by the applicant in the position of Facilities Manager since. The applicant has provided copies of the nominee’s ATO PAYG Summaries, payslips, bank statements and NOA’s confirming that the nominee, during the term of his employment with the applicant, has been paid the full time nominated salary of $75,115 per annum.

29. Based on this evidence, the Tribunal is satisfied the nominee has been employed full time in the occupation of Facilities Manager (ANZSCO 149913), since commencing employment with the applicant whilst the holder of a Subclass 457 Visa in October 2014. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.

30. Given the above findings, the requirement in r.5.19(3)(c) is met.

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

31. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

32. The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Facilities Manager (ANZSCO 149913).). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).

33. The Tribunal examined the financial information submitted by the applicant. The applicant’s BAS returns for the period July 2018 to April 2019 show that the applicant recorded sales of $119,218,285. In consideration of the applicant’s reported salary and wage expense, the Tribunal has referred to the applicant’s financial statements as the salary expenditure recorded on the submitted BAS returns relates only to staff employed at Corporate level and does not reflect the total salary expense of all the applicant’s business entities. According to the applicant’s submissions, total payroll expense for the 2019 financial year was $61,069,569.

34. In considering whether the business has the financial capacity to pay the nominated base salary of $75,115 per annum plus 9.5% superannuation to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements and documents submitted to the ATO. The Tribunal notes that the applicant’s BAS returns for the 2019 financial year (July 2018 to April 2019), recorded income of $119,218,285. Evidence provided by the applicant states the applicant’s 2019 financial year wages expense was $61,069,569. The Tribunal has also given weight to information before it including the applicant’s financial statements (dating back to 2016), which show the applicant has met payroll and operating costs since the 2016 financial year. The Tribunal has also taken into consideration the nominee’s payroll and taxation records, which show the applicant has met the nominee’s fulltime salary since October 2014.

35. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full time employment as they have done since the nominee commenced employment with the applicant in October 2014.

36. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

37. The Tribunal has had regard to the contract of employment for the nominee dated 23 September 2019. The Tribunal notes the applicant has also provided a previous contract dated 3 September 2014. The contract dated 23 September 2019 sets out the terms and conditions of employment and indicate that the period of employment is two years upon the granting of a visa. At the hearing, the applicant advised the Tribunal, that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates a total remuneration package of $102,500.08 per annum comprising of a base salary of $77,625.60, superannuation (9.5%) $7,374.40 and a car allowance of $17,500.08.  The hours of work are 38 hours per week. There is no term excluding an extension of the contract.

38. The Tribunal is satisfied based on the employment contract dated 23 September 2019 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(3) (d) (ii) is met.

39. As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are met

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

40. 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.

41. The contract of employment dated 23 September 2019, sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $77,625.60 per annum, exclusive of superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, long service and personal/carer’s leave.

42. The Tribunal has received payslips, ATO PAYG summaries, NOA’s and bank statements confirming that the nominee since commencing full time employment with the applicant in October 2014, has been paid in excess of the nominated salary amount of $75,115 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

43. The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

44. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

45. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

46. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 22 October 2018 to 22 October 2023.

47. From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));

    ·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).

    [1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).

48. It should be noted that even if failure to satisfy one of these criteria was the reason for a Departmental delegate (before 18 March 2018) refusing to approve an applicant as a standard business sponsor, this will no longer be relevant to reviews conducted by the Tribunal.

49. For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.

50. The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 22 October 2018 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f), are no longer applicable.

51. Accordingly, the requirement in r.5.19(3)(f) is met.

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

52. 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 it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

53. 'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent. The matters listed in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.

1. The definition also specifies that the 'conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years' – see r.1.13A(3). The Department's Procedures Advice Manual (PAM3) indicates that 'within the last 3 years' should be interpreted to mean '3 years from the date that the relevant information is being considered', which the Tribunal considers means the 3 year period prior to its consideration (in this case, the period 3 years before  26 September 2019, being 26 September  2016 to 26 September 2019).

2. Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

3. There is evidence before the Tribunal regarding the applicant that may be considered adverse. The information relates to the applicant being barred as a sponsor for a period of three months and being issued an infringement notice of $12,600.

4. Prior to the hearing, the applicant voluntarily disclosed to the Tribunal that on 14 August 2019, Australian Border Force (ABF) issued the applicant an infringement notice. At the hearing, the applicant further disclosed to the Tribunal that ABF had advised the applicant on Monday 16 September 2019 (three days prior to the hearing) that the applicant was now subject to a three-month bar on future sponsorship. The bar does not prohibit the continuation of the Nomination Application.

5. The applicant told the Tribunal that the Department’s actions were the result of a pay matter in which the Department, as a result of an audit, found that the business had underpaid a sponsored employee. The applicant told the Tribunal that the pay discrepancy had arisen through a clerical error following the employee’s request to reduce his shifts. The applicant provided to the Tribunal a copy of the Infringement Notice dated 14 August 2019, which shows that ABF found that the applicant contravened regulation 2.79 for underpayments occurring on 12 March 2019 and 26 March 2019. A penalty of $12,600 was imposed which was subsequently paid by the applicant. The applicant also provided the Tribunal a copy of the decision by Australian Border Force dated 16 September 2019 to impose a bar on the applicant under s. 140M(1) of the Act.

6. The Tribunal has considered the applicant’s evidence and notes based on records from the Department’s files and information provided by the applicant to the Tribunal, that on the 14 August 2019 the applicant was issued an infringement notice by ABF for breach of regulation 2.79. On 16 September 2019, the applicant was barred from sponsoring more people for three months (from 16 September 2019 until 16 December 2019), as it was found the applicant failed to satisfy sponsorship obligations, specifically regulations  2.79 and 2.86.  

7. The Tribunal finds that this sponsorship bar and the issuing of an Infringement Notice, falls within the definition of adverse information as the applicant being the nominator (1.13A(1)(b)), has been subject to an administrative action (1.13A(1)(f)) relating to Immigration (1.13A(2)(b)) that has occurred within the previous 3 years.

8. It follows that there is adverse information known to Immigration about the nominator or a person associated with the nominator. The applicant therefore does not satisfy the requirements of r.5.19(3)(g)(i).

9. As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard this information.

10. Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:

    ·the nature of the adverse information

    ·how the adverse information arose, including the credibility of the source of the adverse information

    ·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not

    ·whether the adverse information arose recently or a long time ago whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur

    ·information about relevant findings made by a competent authority in relation to the

    ·adverse information, and the significance attached by the competent authority to the adverse information.

11. Based on the evidence before it and the oral evidence provided at the hearing, the Tribunal acknowledges that the recent action taken by the Department was in relation to finding the applicant breached their sponsorship obligations concerning an underpayment of a nominated salary amount.

12. Evidence before the Tribunal supports that the applicant took steps to rectify the breach immediately upon it being brought to their attention.

13. The applicant has provided a detailed submission and supporting documentation to the Tribunal including a submission to Australian Border Force dated 3 September 2019 and written policy titled “DIMEO Employee Sponsorship Policy and Procedures”.  The Tribunal has considered this documentation and evidence provided at the hearing by the applicant in regard to the adverse information and notes the following:

14. The applicant is subject to a three-month bar. On 16 September 2019, Australian Border Force issued a Notice of Decision to the applicant. The decision under section 140M(1) of the Migration Act 1958, is a bar for a period of three months from sponsoring more people under the terms of the approved standard business sponsorship and from sponsoring more people under the terms of the approved temporary activities sponsorship.

15. The applicant told the Tribunal that the underpayment was identified when the Department conducted an audit. The underpayment occurred after a sponsored employee had requested to reduce his own hours.  The employee’s supervisor permitted the reduced hours but did not inform the administrative staff and hence the applicant was not aware of the implications to the visa sponsorship. Immediately when the matter was raised by the Department the applicant took corrective action to rectify the breach including the payment of outstanding monies due to the employee.

16. The Department during the audit, also identified that two sponsored employees (including the employee who was found to be underpaid) were not working in their nominated positions. The applicant told the Tribunal that the employees were working in their respective nominated positions and that the issue had resulted due to the word “cleaning” appearing on their payslips which refers to the job sector and not the actual position. Immediate steps were taken by the applicant to rectify this matter with a review undertaken of the applicant’s payroll system and updates implemented to ensure the wording used on payslips reflects accurately the employee’s position.

17. The Tribunal notes the applicant’s evidence that they have sought to mitigate the contravention by taking action including, undertaking payroll and administrative reviews of their sponsored employees to ensure the applicant is compliant with sponsorship obligations, updating and modifying  payroll systems and the development and implementation of a visa sponsorship management policy.

18. Based on the evidence before it, including the oral evidence provided at the hearing, the Tribunal accepts that the sponsor did not deliberately attempt to underpay the employee and that the applicant has demonstrated its commitment to the employment of sponsored employees, through the implementation of preventative measures to ensure no further breaches occur and that the applicant is compliant with its sponsorship obligations.

19. The Tribunal has considered the information before it in regard to the action taken by Australian Border Force in barring the applicant under 140M(1) for a period of three months (effective from 16 September 2019) and has given weighting to the nature of the adverse information, the circumstances contributing to the Department’s decision and the subsequent action taken by the applicant to rectify the matter.

20. Based on the information before it, the Tribunal finds that the underpayments were not intentional and that the applicant cooperated with the Department during the monitoring process, has paid the infringement notice and undertook immediate action to rectify the underpayments. 

21. The Tribunal has further placed weighting on the applicant’s history of sponsorship and notes Department records, which show this is first sanction imposed by the Department against the applicant during the applicant’s history of sponsorship approval. The applicant told the Tribunal that they have sponsored 19 employees since 2011 and currently sponsor seven employees. Department records show that the applicant paid the Infringement Notice on 6 September 2019.

22. The Tribunal therefore finds on the information before it, that the applicant did not intend to underpay the sponsored employees and has demonstrated a commitment to ensure its employees are valued and remunerated in accordance with their sponsorship and legislative responsibilities as an employer. In consideration of the circumstances which contributed to the Department’s actions, full disclosure by the applicant prior to and at the hearing, of the adverse information and action taken by the applicant to rectify the pay anomaly, the Tribunal finds in this instance it is reasonable to disregard adverse information about the nominator. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information.

23. Accordingly, the requirement in r.5.19(3)(g) is met.

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

24. Regulation 5.19(3)(h) requires the applicant to have 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.

25. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

26. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

27. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 (3) for approval of the nomination of the position in Australia.

    DECISION

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

    Karen McNamara
    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.