Emanuele Bros Pty Ltd (Migration)

This matter concerned an appeal by Emanuele Bros Pty Ltd against a decision to refuse a Temporary Residence Transition nomination. The core of the dispute revolved around whether the terms and conditions of employment offered to the nominated employee, Roman Sacramento, were no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same location. The decision was made by Stavros Georgiadis, a member of the Tribunal.

The legal issue before the Tribunal was to determine if Emanuele Bros Pty Ltd had met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994, specifically focusing on the criterion in subregulation (3)(e) concerning the terms and conditions of employment. This regulation requires that the nominated employee's employment terms and conditions must be no less favourable than those offered to an Australian citizen or permanent resident undertaking equivalent work in the same workplace and location.

The Tribunal considered submissions and evidence provided by Emanuele Bros Pty Ltd, which stated that Australian workers and permanent residents performing equivalent work were covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010, the same award applicable to Mr Sacramento. However, the company also submitted that they paid their Australian mechanics an over-award rate, as evidenced by a table showing varying rates based on experience and mentoring ability. While Mr Sacramento's pay was also determined by his experience and mentoring willingness, the Tribunal found no evidence demonstrating that his terms and conditions were not less favourable than those of other Australian mechanics. Crucially, the company failed to provide evidence that no Australian citizen mechanics were earning more than Mr Sacramento, or that his terms were comparable to those of other Australian mechanics with similar experience levels.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that Emanuele Bros Pty Ltd had not satisfied the requirement under regulation 5.19(3)(e) that the terms and conditions of employment for the nominated position be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.