Emanuele Bros Pty Ltd (Migration)

[2019] AATA 462

Emanuele Bros Pty Ltd (Migration) [2019] AATA 462 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Emanuele Bros Pty Ltd

CASE NUMBER:  1703754

DIBP REFERENCE(S):  BCC2016/2069171

MEMBER:Stavros Georgiadis

DATE:28 February 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 28 February 2019 at 1:57pm

CATCHWORDS
MIGRATION – Nomination – Temporary Residence Transition nomination – no less favourable terms and conditions of employment – Motor Mechanic (General) ANZSCO 321211 – no evidence regarding other Australian citizen mechanics earning more than nominee – decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, rr 5.19(3), 5.19(4)

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 10 February 2017 to reject the applicant’s application 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 16 June 2016. 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 as the delegate considered there was an absence of evidence to substantiate the applicant meets the training benchmark requirements during the period of their most recent approval as a standard business sponsor approved on 13 July 2015.

5. Mr Angus Rankine, HR Manager appeared before the Tribunal on behalf of the applicant on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicants in the related casefile matter 1707054 nominating Mr Roman Bien Sacramento for the position of Motor Mechanic (General) ANZSCO 321211.  The related matters were heard together in a combined hearing.

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

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. At the hearing, the applicant was given additional time to demonstrate that it meets all the requirements under r.5.19(3) for the grant of the visa. This includes the requirements relating to the terms and conditions of employment applicable to the nominated position.

10. Following the hearing, the applicant made additional written submissions and attachments provided dated 6 November 2018 - under cover letter of 8 November 2018.

11. 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.

12. The Tribunal has considered the written submissions in response which relevantly, set out at page 3 and 4 as follows:

    Emanuele Bros has Australian workers and permanent residents in the workplace doing equivalent work that Roman Sacramento is performing in the same workplace and at the same location. These workers' terms and conditions of employment are covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 which is also the same terms and conditions being offered to Mr Sacramento. The minimum rate of pay for this position as per the award is $22.04 per hour (pls refer to Attachment 8).

    While Emanuele Bros uses the Vehicle Manufacturing, Repair, Services and Retail Award 2010 as the basis of the terms and conditions of employment, they pay their Australian/Permanent resident Motor Mechanics doing equivalent work an over award rate of pay.

    Please see Attachment 9, Table of the Rate of Pay of Motor Mechanics, prepared and certified by the company's Group HR Manager, which shows that the company pay their Motor Mechanics an over award rate of pay (Mechanics 2,3,6,8,9). The other Mechanics in the list who are Australian citizens are Apprentices and while they fall under the same award, they fall under a different classification and they obviously do not perform equivalent work hence the difference in the rate of pay (please refer to Attachment 10 which sets out the minimum wage rate for Apprentices).

    Note that while there are variations in the rate of pay of each mechanic, this is attributed to the individual employee's level/years of experience as well as the individual's willingness to mentor other mechanics.

    In the case of Roman Sacramento, his rate of pay has been determined using his level of experience as a basis as well as his willingness to mentor other mechanics. He has over 22 years of experience as a Motor Mechanic to his credit. In addition, Mr Sacramento is backed by his educational qualifications, having completed courses in Diesel & Automotive Mechanic from the Philippines. He also worked as a Motor Mechanic in the Philippines, in Saudi Arabia as well as in Australia.

    The other Motor Mechanics in the company have either more or less experience compared to Mr Sacramento, hence the difference in the rate of pay.

13. The adult rate of pay under the relevant Vehicle Manufacturing, Repair, Services and Retail Award 2010 (effective 1 July 2018) at Table 1 - Vehicle industry RS&R - full-time & part-time is as set out below:

Vehicle   industry RS&R tradesperson or equivalent level 1	$837.40 per week	$22.04 per hour	N/A
Vehicle industry RS&R tradesperson or equivalent level 2 $916.10 per week $24.11 per hour

1. From the table of payments regarding the applicant’s mechanics and apprentices attached to the applicant’s written submissions (attachment 9), the Tribunal finds that 3 mechanics who are Australian citizens (and not apprentices) are paid in excess of the nominee for the occupation of mechanic.  Specifically, mechanic 2 is paid $28.00 per hour, mechanic 6 is paid $30.00 per hour, and mechanic 8 is paid $28.38 per hour. Mechanics 3 and 9 are citizens (and not apprentices) but paid slightly less that the nominee at $27.00 per hour compared to the nominee’s rate of $27.38 per hour as set out in the letter of 6 November 2018 (attachment 8). The Tribunal notes that the applicant pays above the award rate per hour.  It appears the nominee is mechanic 4 in the table, but in any case, the Tribunal accepts from the aforementioned letter that the nominee is paid $27.38 per hour as a level 1 vehicle industry RS&R tradesperson.

2. The Tribunal notes the minimum hourly rate of $22.04 for a level 1 vehicle industry RS&R tradesperson. The Tribunal also notes the difference between a level I and level 2 vehicle industry RS&R tradesperson is $2.07 per hour under the above award - pointing to any difference in work levels 1 and 2 reflect at least this differential in the hourly rate paid.

3. The Tribunal has had regard to the applicant’s written submissions in response, explaining that the different rates of pay stem from different level/years of experience as well as the individual’s willingness to mentor other mechanics. The submission is that the other mechanics in the company have “either more or less experience compared to Mr Sacramento, hence the difference in the rate of pay.” 

4. The applicant has provided particulars regarding the nominee, Mr Sacramento, and the Tribunal accepts from this that the nominee has over 22 years work experience as a motor mechanic, has relevant educational qualifications having completed courses in Diesel and Automotive Mechanic, and also has overseas experience. However, the applicant has not provided any evidence in respect of the level of experience or other particulars of the other mechanics who are Australian citizens and paid more than the nominee (specifically mechanics 2, 6 and 8) to enable any comparison in regard to performing equivalent work in the same workplace at the same location. Given this, and noting that the difference between a level 1 and level 2 vehicle industry RS&R tradesperson is $2.07 per hour, the Tribunal is not satisfied that the applicant has demonstrated that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

5. Accordingly, the requirement in r.5.19(3)(e) is not met.

6. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4).

7. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

8. The Tribunal affirms the decision under review to refuse the nomination.

   Stavros Georgiadis
   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.