EZY 10 PIZZA COMPANY PTY LTD (Migration)

EZY 10 PIZZA COMPANY PTY LTD (Migration) [2020] AATA 5026 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EZY 10 PIZZA COMPANY PTY LTD
CASE NUMBER:  1804735
HOME AFFAIRS REFERENCE(S):          BCC2016/3399092
MEMBER:W Frost
DATE:12 October 2020
PLACE OF DECISION:  Canberra
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 October 2020 at 3:54pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – Domino’s Pizza Store Manager – tasks to be performed correspond with ANZSCO – Unit Group 1421 – Sub-Franchise Agreement – tasks set out in Business Plan for the Domino’s Pizza ‘Multi-Unit Franchisee ACT & NSW’ – organisational structure – role of the Managing Directors – standardised tasks and processes across the Domino brand – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 February 2018 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 (Regulations).
On 13 October 2016, the applicant applied to the then Department of Immigration for approval of the nominated position, ‘Retail Manager (General)’ (Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 142111). 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The nominated position of ‘Retail Manager (General)’ (ANZSCO Code 142111), is with Ezy 10 Pizza Company Pty Ltd, trading as ‘Domino’s Pizza Belconnen’ (Nominator) in the Australian Capital Territory (ACT). The nominated position is to be filled by the nominee, Ms Anchal Rani, a current employee with the Nominator (Employee).
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4) of the Regulations, because the delegate was not satisfied that the tasks to be performed in the nominated position correspond to the tasks of an occupation specified by the Minister in an instrument in writing. Therefore, the delegate found that the business did not meet r.5.19(4)(h)(ii)(D) of the Regulations.
On 22 February 2018, the Nominator applied to the Administrative Appeals Tribunal (Tribunal) for review of this decision.
The Nominator appeared before the Tribunal on 21 September 2020, by the videoconferencing facility Microsoft Teams, to give evidence and present arguments in support of its application. The Tribunal received oral evidence from Mr Chad Cable and Mr David Hutchinson, the Managing Directors of the Nominator both of whom were authorised to speak on behalf of the applicant and from Ms Rani, the Employee of the nominating business. The Nominator and the Employee were also represented by their registered migration agent, Mr Willem Oostdyck.
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
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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) of the Migration Act 1958 (Act). Pursuant to r.5.19(4)(a)(ii), the application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The material on the departmental and Tribunal files demonstrates that the application was made on form 1395, or 1395 (Internet) and accompanied by the fee prescribed in r.5.37. The application identified a need for the Nominator to employ a paid employee to work in the position under the Nominator’s direct control, primarily because it confirmed that there was no Australian employee at the business ‘doing the same work as the nominated person’. The nominated position was identified as ‘Retail Manager (General)’ with Ezy 10 Pizza Company Pty Ltd (trading as ‘Domino’s Pizza Belconnen’). The Tribunal is satisfied that the nomination identified a need for the position under the direct control of the Nominator and this need is discussed further below in these reasons.
The application also contained written certification that the Nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Nominator is an Australian proprietary company that was registered with the Australian Securities & Investments Commission (ASIC) on 21 January 2013. The Managing Directors of the Nominator are also its only shareholders. A ‘Current & Historical Company Extract’ provided by the Nominator and dated 8 May 2020 confirms the Nominator remains registered with ASIC.
The Nominator told the Tribunal that it commenced operating the Domino’s Pizza Belconnen store in 2013, it has between 45 and 50 employees, and the Employee has worked at since 2016.
The latest financial statements of the Nominator, for the year ended 30 June 2019, indicate that the business made an operating profit after income tax of $98,533, with a total trading income of more than $2.7 million and had retained profits at the end of the financial year of more than $650,000.
On the available evidence, the Tribunal is satisfied that the Nominator is actively and lawfully operating a business in Australia and that it directly operates the business. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. Based on the information before the Tribunal, it finds that the Nominator is not involved in labour-hire activities and it is satisfied that the nominated position is not a labour-hire position. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Mr Cable, one of the two Managing Directors of the Nominator, told the Tribunal that the Employee began working at the Domino’s Pizza Belconnen store in February 2016 and from that time she was performing some of the tasks of Store Manager, but was not officially appointed to that position until October 2016. Additionally, it was confirmed at the hearing that the Employee had been working in a part-time capacity, or an average of 20 hours per week, from February 2016 until the end of 2017 due to her university studies. From the end of 2017, the Employee has worked in a full-time capacity as Store Manager at Domino’s Pizza Belconnen.
A ‘Letter of engagement’ dated 14 October 2016 offered the Employee employment with the Nominator in the position of Store Manager on a ‘full-time and ongoing’ basis, with remuneration comprising a salary of $46,198 and employer superannuation contributions in accordance with the relevant legislation, noting that the application from the Nominator to the Department also listed a salary of $46,198 for the position (which application was made in 2016 on the day before the letter of engagement was provided to the Employee listing the same salary amount). While this letter of engagement said that the Employee’s ‘start date’ was ‘upon commencement of your subclass 187 visa’ (which was refused by the Department in March 2018) and the Employee was then working in a part-time capacity, the Employee accepted the offer of employment by signing and dating a copy of the letter on 24 October 2016. The Tribunal was told by the Managing Directors that this employment contract remains in place for the Employee, subject to the more recent ‘Letter of Offer’ document that was signed by the Nominator and the Employee on 15 June 2020.
This Letter of Offer confirmed that the Employee was employed as the ‘Store Manager’ in a full-time capacity and listed a revised salary of $53,900, which commenced on 15 June 2020. The Letter of Offer did not express a set period of time for the Employee’s employment, but the Managing Directors told the Tribunal that her employment was ongoing and the earlier letter of engagement from 2016 was the current employment contract, with the Letter of Offer document adjusting some of the Employee’s terms and conditions. The Letter of Offer from 2020 stated that these terms and conditions were ‘provided under the attached IFA agreement [individual flexibility agreement] and Fast Food Industry Award 2010’. The ‘Commencement Date’ for these terms and conditions was listed as 15 June 2020. A letter from the Nominator to the Employee dated 8 June 2020 proposes the parties enter into the Individual Flexibility Agreement (IFA) in relation to ‘penalty rates, certain allowances and annual leave loading’ and attaches the IFA. Clause 1.2.1 of the IFA states that the Employee ‘will be paid an hourly rate that is higher than the hourly rate of pay provided under the Award’ [being the Fast Food Industry Award 2010] and that she ‘will be entitled to participate in an incentive Scheme under which you will be eligible to earn a performance bonus’. Clause 2.1 notes that by law the IFA must result in the Employee’s ‘overall terms and conditions of employment being better than if no IFA were entered into at all and the Award applied to your employment’. The IFA can be terminated with 13 weeks’ notice or at any time with the parties’ written agreement and the Employee’s terms and conditions of employment ‘will revert back to the applicable Award terms’.
The terms and conditions of the Employee’s employment do not expressly exclude the possibility of extending the period of her employment with the Nominator. To this end, at the hearing, the Nominator told the Tribunal that the position was ongoing and it wanted the Employee to continue to work with it on a long-term basis because of her managerial skills and the increased profitability of the store under her management.
The Employee also told the Tribunal that she wanted to remain in her current role with the business and enjoyed working for the Nominator; the Employee enjoys the flexibility of the role and its hours, in circumstances where she has an eighteen month old child, and lives close to the store and day-care facilities and schools that she can utilise in the future. The Nominator confirmed that the Employee would be employed by the business in the position as Store Manager for at least the next two years.
For completeness, the Tribunal notes that it is satisfied that the Nominator has the financial capacity to employee the Employee for at least two years based on the financial statements provided by the Nominator in relation to its Domino’s Pizza Belconnen business. For example, the Nominator’s profit and loss statement for the year ending 30 June 2019 lists ‘Operating profit after income tax’ of $98,533 and ‘Retained profits’ of $650,506, the latter being an increase from $551,973 for the financial year ending 30 June 2018. Additionally, the payment of ‘Wages’ to employees by the Nominator was in the amount of $775,567 for the financial year ending 30 June 2019.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(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.
As noted above, the Employee’s current salary is $53,900 for the position of Store Manager with the Nominator. Under the Fast Food Industry Award 2010, the minimum salary for a person who is working full-time, aged over 21 and in charge of two or more people is $23.33 per hour. Accordingly, using this minimum hourly rate of $23.33, based on working 38 hours per week an annual salary would be approximately $46,100 and, based on working 40 hours per week, an annual salary would be approximately $48,526. The Employee’s salary is above these minimum amounts at $53,900, pursuant to the IFA she recently entered into with the Nominator, which also provides for payment of a ‘performance bonus’ to the Employee.
For the avoidance of doubt, there is no Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location. Based on the material before the Tribunal, it is satisfied that the terms and conditions 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. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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. Based on the information before the Tribunal, there is no adverse information known to Immigration about the Nominator or a person ‘associated with’ the Nominator. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
Based on the evidence before the Tribunal, it finds that the Nominator has a satisfactory record of compliance with workplace relations laws in locations in which it operates a business and employs staff. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The nomination was made on the basis that the position and business is located in regional Australia. The Tribunal finds that the entire territory of the ACT is defined as part of ‘regional Australia’ under the Regulations. Both the position and the business operated by the Nominator are located in the ACT and they are therefore located in ‘regional Australia’. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.
The Tribunal turns to consider whether there is a genuine need for the Nominator to employ a paid employee to work in the position under their direct control pursuant to r.5.19(4)(h)(ii)(B). On 18 June 2020, in response to the Tribunal’s invitation in May 2020, the Nominator provided a submission in support of its nomination and relevantly noted that:
Domino’s Pizza Multi-Unit Franchise ACT & NSW is a franchisee operating seven successful Domino’s stores: Belconnen, Kippax, Dickson, Fishwick [sic] and Canberra City in the Australian Capital Territory, and Queanbeyan and Googong in New South Wales.
The business relies strongly on experienced, qualified and reliable Store Managers who manage the stores and the staff, and ensure that it work [sic] smoothly and safely and provide consistently excellent products and services Domino’s Pizza is renowned for.
Over the years, Domino’s Pizza Multi-Unit Franchise ACT & NSW has selected, trained and retained a number of qualified, experienced and reliable and motivated team members. Amongst them are three Store Managers who have long been working in the first stores – Belconnen, Kippax and Dickson. They have proven to be a great management and operational support to David and Chad [the Managing Directors] and a valuable resource the business strongly relies on.
10 SLICE [sic] PIZZA COMPANY PTY LTD trading as “Dominos Belconnen” lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream for the position of Retail Manager (ANZSCO 142111). The nomination was lodged in favour of ANCHAL RANI.
The nomination was refused on 8 February 2018.
The business commenced trading on 22 January 2013. This business is a Pizza shop. These stores are franchises of Domino’s Pizza Enterprises (DPE) and 10 SLICE [sic] PIZZA COMPANY PTY LTD is the Franchisee.
Additionally, a Business Plan dated June 2020 for the Domino’s Pizza ‘Multi-Unit Franchisee ACT & NSW’ (Business Plan) that is operated by the Managing Directors states that it:
employs over 200 permanent, casual and part-time team members over the seven stores it operates. Domino’s employees perform a wide range of duties, from preparing the food to delivering it to customers, and ultimately enable the success of each store.
…
Domino’s offers a wide range of pizzas, sides, drinks and deserts. The stores are open seven days a week, taking orders in store and online and offering customers to order pickups and deliveries.
…
Domino’s Pizza Enterprises Limited…is a [sic] Australian-owned public company (ASX: DMP), the master franchise holder for Domino’s in Australia, New Zealand, Belgium, France, the Netherlands, Japan, Germany, Luxembourg and Denmark. The Domino’s brand is owned by Domino’s Pizza, Inc, a listed US company.
…
The cost of a new Domino’s store in Australia is generally between $450,000 - $600,000 + GST. Initial costs include a franchise fee (applicable to new stores only) of $60,000 + GST, document/legal preparation fees and the other costs associated with completing your own due diligence. Ongoing costs include a royalty fee of 7% of gross sales paid every month and each outlet contributes a maximum of 6% of sales towards national advertising.
…
Domino’s Pizza Multi-Unit Franchisee ACT & NSW employs a large number of staff on a full-time, part-time and casual basis. Considering the stores serve a standard easy-to-make range, most staff should not necessarily be fully qualified, but must be well trained in the Domino’s food preparation and assembly techniques. Thus, all employees undergo a comprehensive Domino’s Induction Training Program, a program designed to acquaint employees with all the safety and quality policies and procedures the business follows, as well as specific food preparation and assembly techniques. Staff also undergo regular refresher trainings.
All staff is [sic] provided with uniforms and Personal Protective Equipment as required. the staff remuneration is in accordance with the Fast Food Industry ward 2010.
…
Store Managers are assigned as Food Safety Supervisors to supervise the compliance with the [Australia New Zealand Food Standards] Code and enforce safe food preparation practices.
…
The management, in particular Store Managers, ensure that the business does not create health and safety problems for its customers, employees, contractors and the public.

The Business Plan also sets out an organisational structure for the business (among other Domino’s stores), which has the Managing Directors at the top of the structure with the Employee as Store Manager immediately beneath them (together with Store Managers from other Domino’s stores operated by the Managing Directors), followed by an Assistant Store Manager for the business and then its ‘Team Members’.
Additionally, in a letter to the Tribunal dated 7 September 2020, Mr Cable said that:
Regarding Ezy 10 Pizza Company Pty Ltd and Anchal Rani [the Employee], David [Hutchinson] and I had just taken on our third store in Dickson, we were also in the process of acquiring our fourth store in Queanbeyan and were struggling to find suitable and honest managers.
Previously in Ezy 10 Pizza Company we had a full-time Australian manager who resigned soon after we brought up inconsistencies with invoices and stock. We’re unsure exactly how much money was taken by him, but we wanted to put in the past and focus on finding someone who we could trust and rely on to do the right thing by the team and us. At the time, we didn’t have many team members who wanted to take on the role of manager.
We then met Anchal, she had previous experience working in customer service roles in both retail and hospitality and was studying business at University of Canberra. Anchal was excited about the role and opportunity to lead and develop her own team.
Over the coming months, we taught her the ropes of managing a Domino’s store, since then Anchal has played a significant role in our business not only has she been a loyal, trustworthy and hardworking manager. Anchal has always been people-focused and thinking ahead, guaranteeing her store maintains high standards and treats the store like it was her own.
Furthermore, at the hearing, Mr Cable for the Nominator told the Tribunal that the Managing Directors own and operate seven stores and therefore rely on each of their Store Managers to undertake numerous tasks and responsibilities to ensure they meet the requisite standards. Mr Cable said it was difficult to find and retain reliable people to undertake the role of Store Manager, especially given the long and unusual hours of the business. In this regard, while the Employee works the standard full-time role of 38 hours per week, these can be irregular hours such as during weekends, outside normal business or operating hours and often late into the night when responsible for closing the store.
Finally, the Tribunal notes that the relevant Regional Certifying Body, being the ACT Economic Development Directorate, located in the same Territory as the position, advised the Minister in November 2017 about r.5.19(4)(h)(ii)(B) of the Regulations (among others) and confirmed that the nomination satisfied this requirement. Despite this advice being almost three years old, the Tribunal accepts that it remains correct and current based on the evidence from the Nominator regarding its need to employ the Employee in the nominated position under its direct control.
For the above reasons, the Tribunal accepts that there is a genuine need for the Nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the Nominator’s direct control. That is, the Tribunal is satisfied that r.5.19(4)(h)(ii)(B) is met. The Employee has been formally employed by the Nominator in the position of Store Manager for almost four years. The Employee is employed in the nominated position and has been working in that role since 2016.
The Tribunal also accepts, based on the evidence before it, that the Nominator cannot fill the nominated position of Store Manager at Domino’s Belconnen with an Australian citizen or an Australian permanent resident who is living in the same local area. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is met. In this regard, Mr Cable for the Nominator told the Tribunal (in writing and verbally at the hearing) that it was difficult to fill the position of Store Manager at Domino’s Belconnen. There had previously been a manager who was an Australian citizen working for the Nominator, but that employee resigned when the Managing Directors raised with him irregularities it had identified with invoices and stock that the Nominator considered potentially amounted to fraud by that employee. Following the resignation of this manager, the Nominator said that none of its employees who were Australian citizens or permanent residents wanted to work in the position of Store Manager and it otherwise could not identify ‘suitable and honest managers’ that were Australian citizens or permanent residents living in the local area to fill the position, especially because of the long and irregular trading hours of the business. The Nominators met the Employee who was interested in taking on the role of Store Manager and helping to grow the business; the Employee joined the business as an employee in early 2016 and signed an employment contract in October 2016 for the nominated position. The Employee worked in the role of Store Manager in a part-time capacity (averaging 20 hours per week) until the end of 2017, when she completed her university studies, following which she has worked in the position on a full-time basis. That is, for almost three years.
While the Nominator provided the Tribunal with copies of invoices for the costs of placing advertisements on Seek in July 2017 and February 2018 for the position of Store Manager, there was no evidence of the outcome of these advertisements, such as the number of applicants and their suitability for the position. Accordingly, the Tribunal cannot place any weight on this evidence in support of the contention that the Nominator cannot fill the nominated position with an Australian citizen or permanent resident living in the same area.
The Tribunal notes that the relevant Regional Certifying Body advised the Minister in November 2017 about r.5.19(4)(h)(ii)(C) of the Regulations (among others) and confirmed that the nomination satisfied this requirement. Despite this advice being almost three years old, the Tribunal accepts that it remains correct and current based on the evidence from the Nominator regarding the position being unable to be filled by an Australian citizen or permanent resident living in the same local area.
As a result of all of the above evidence, on balance, the Tribunal is satisfied that the nominated position of Store Manager at Domino’s Belconnen cannot be filled with an Australian citizen or an Australian permanent resident who is living in the same local area. Therefore, r.5.19(4)(h)(ii)(C) is met.
Pursuant to r.5.19(4)(h)(ii)(D) of the Regulations, the Tribunal must be satisfied that the tasks to be performed in the nominated position of Retail or Store Manager at the business correspond to the tasks for that occupation specified by the Minister in the relevant legislative instrument, the ANZSCO, which in this instance is ‘Retail Manager (General)’. ANZSCO is a skill-based classification produced by the Australian Bureau of Statistics used to classify all occupations and jobs in the Australian and New Zealand labour markets to provide a generic baseline of duties for a particular position based on statistical data. The ANZSCO classifies ‘Retail Managers’ as a ‘Unit Group’ (numbered 1421) and provides the following description, including of the occupation of ‘Retail Manager (General)’:
UNIT GROUP 1421 RETAIL MANAGERS
RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment's goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
Occupations:
142111 Retail Manager (General)
142112 Antique Dealer
142113 Betting Agency Manager
142114 Hair or Beauty Salon Manager
142115 Post Office Manager
142116 Travel Agency Manager
142111 RETAIL MANAGER (GENERAL)
Alternative Titles:
Retail Store Manager
Shop Manager
Organises and controls the operations of a retail trading establishment.
…
Skill Level: 2
…
The Nominator provided a ‘Sub-Franchise Agreement’ that was executed as an agreement on 19 March 2013 for the Domino’s Pizza Belconnen business. The ‘Master Franchisee’ is listed as Domino’s Pizza Enterprises Ltd. The Sub-Franchise Agreement states that the application from the ‘Sub-Franchisee’, listed as ‘Hutchinson Enterprises (ACT) Pty Ltd ACN 119 775 770 ATF Hutchinson Family Trust’, has been approved by Domino’s Pizza Enterprises Ltd allowing it to operate a Domino’s Pizza Store ‘utilizing the Domino’s System and the Marks at the location identified in this Agreement’, being Belconnen in the ACT. The Nominator is listed as one of the ‘Guarantors’ (together, among others, with Mr Hutchinson, one of the Managing Directors of the Nominator). The Tribunal notes that in November 2015, a Deed of Variation was executed whereby, among other things, the Sub-Franchisee was removed and a new Sub-Franchisee appointed, being ‘Hutchinson Cable 1 Pty Ltd ACN 605 266 671 ATF Ezy 10 Pizza Unit Trust’. The new Sub-Franchisee is owned by both of the Managing Directors. Mr Cable was also appointed as a Guarantor by the Deed of Variation.
Clause 2.5 in the Sub-Franchise Agreement refers to a Manager of the Domino’s Pizza Store and states that:
You must ensure that a Manager supervises the Sub-Franchised Operation during opening hours.
The Manager will be obliged to comply with this Agreement. Any breach by the Manager will constitute a breach by You under this Agreement.
The Manager must display the required level of skill and experience as may be reasonably required by the Master Franchisee.
Additionally, clause 16.9 of the Sub-Franchise Agreement states that the store ‘shall at all times be under the direct, on-premises supervision’ of the Sub-Franchisee or its nominee. Relevantly for the Managing Directors of the Nominator, the Sub-Franchise Agreement states that where the Sub-Franchisee owns more than one Domino’s store, each store ‘must be under the direct, on-premises supervision of a Manager’:
who has completed, to the Master Franchisee’s satisfaction, such training as the Master Franchisee specifies;
whose identity has been disclosed to the Master Franchisee; and
who shall have executed, upon the Master Franchisee’s request, an agreement in the form approved by the Master Franchisee agreeing not to divulge any trade secret or confidential or proprietary information, including the contents of the Operating Manual, or to engage in or have any interest in any other fast food business for the period of employment and one (1) year thereafter.
The ‘Letter of engagement’ from October 2016 provided to the Employee by the Nominator for employment as its Store Manager at Domino’s Pizza Belconnen stated that the ‘duties of this position are set out in the attached position description.’ That attachment, titled ‘Position Statement - Retail Manager’ set out the following duties and tasks:
·Completes store operational requirements by scheduling and assigning employees;
·Maintains store staff by recruiting, selecting, orienting, and training employees.
·Achieves financial objectives by preparing an annual budget; scheduling expenditures; analysing variances; initiating corrective actions;
·Identifies current and future customer requirements by establishing rapport with potential and actual customers and suppliers to understand service requirements;
·Ensures availability of merchandise and services by approving contracts; maintaining inventories;
·Formulates pricing policies by reviewing merchandising activities; determining additional needed sales promotion; authorizing clearance sales; studying trends;
·Markets merchandise by implementing security systems and measures;
·Protects employees and customers by providing a safe and clean store environment;
·Maintains operations by initiating, coordinating, and enforcing program, operational, and personnel policies and procedures;
·Contributes to team effort by accomplishing related results as needed.
As referred to above, the Business Plan sets out an organisational structure for the business which has at the top of the structure with the Employee as Store Manager immediately beneath them, followed by an Assistant Store Manager and then ‘Team Members’. The Business Plan also sets out personnel requirements for these roles and relevantly states that:
Managing Directors, David Hutchinson and Chad Cable, take care of the overall business management and strategy. They are in charge of the following: business development, growth strategies; overall management of the business ensuring compliant franchisee operations; selecting, managing and training Store Managers; development and implementation of local marketing strategies; controlling the financial aspects of the business and arranging financial reporting and compliance; arranging licenses and insurances, ensuring compliance with regulations; arranging legal advice where necessary, liaising with consultants.
Store Managers are in charge of planning and organisation, control and day-to-day management of the store. Their main duties include: staff recruitment, management, training and rostering; shift running and closing shift paperwork; ordering stock and completing stocktakes; cash control; performing Food Safety Supervisor duties by establishing, following and enforcing compliance with relevant legislation, regulations and standards, including Work Health and Safety (WHS) regulations; performing the team members’ duties if required. This role requires a Food Safety Supervisor (FSS) certificate.
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Anchal Rani is a highly-skilled Store Manager with over five years of experience in the Australian hospitality and fast food industries. Anchal started her career in 2014 at Seven Eleven, Canberra, and then worked as Café Attendant at Café Okrich in Holt, Canberra.
From February 2016, Anchal works as Store Manager at Domino’s Pizza Belconnen.
Anchal holds Diploma of Business and Diploma in Computer Applications, and a Bachelor of Business Administration degree from the University of Canberra.
All three proposed nominees [two of which are unrelated to this application] have proved to be reliable, valuable members of the Domino’s Pizza Multi-Unit Franchisee ACT & NSW team and a great management and operational resource to the business owners. They have well-developed Store Manager skills, appropriate qualifications and in-depth understanding of all aspects of the Domino’s Pizza business. [emphasis in original]
The Employee told the Tribunal at the hearing that her tasks as Retail or Store Manager of Domino’s Pizza Belconnen include hiring staff, ordering and maintaining stock, controlling offers, products and deals, together with local store marketing to generate business while ensuring profitability. The Tribunal was told that the Employee is ‘in charge of planning, organisation and day-to-day management of the store’, in accordance with the tasks set out in the Business Plan. The Nominator told the Tribunal that the Employee runs the day-to-day operations of the store and is, in effect, the franchisee of Domino’s Pizza Belconnen, because the Managing Directors only maintain an oversight role across their seven Domino’s stores.
In relation to ‘determining product mix, stock levels and service standards’, which is a task of a Retail Manager set out in the ANZSCO, clause 13.1 of the Sub-Franchise Agreement states that the business ‘will not offer for sale or sell at or from the Store any products or services not authorised by the Master Franchisee in writing’. Additionally, clause 13.3.7 states that the Sub-Franchisee ‘will stock and maintain all types of supplies, equipment and materials which the Master Franchisee prescribes’ and clause 13.3.3 provides that the Master Franchisee must examine and/or test any ‘ingredient, supply or material not previously approved by the Master Franchisee as conforming to its specifications and quality standards’.
In Mr Cable’s letter to the Tribunal dated 7 September 2020 (referred to above in this decision), he addressed the ANZSCO tasks of a ‘Retail Manager (General)’ that were referred to in the reviewable decision that refused the nominated position at Domino’s Pizza Belconnen, including determining product mix, stock levels and service standards. In this regard, the letter stated as follows:
Anchal maintains all stock levels in her store. By conducting stocktakes, reviewing variances and placing orders via our multiple suppliers. Anchal is also able to influence her stores [sic] product mix by setting targets for her team to sell particular products, also by adjusting pricing of particular items on our EDM [Electronic Direct Mail] tool and via our Domino’s Offers App.
Anchal ensures her store maintains its minimum service standards, however on multiple instances has exceeded expectations. For example, last week Anchal’s team achieved a record service week and was highlighted by our franchisor for breaking their record.
At the hearing, the Tribunal asked the Nominator for more information about who determines what products to use in the store, stock levels and service standards. Mr Cable acknowledged that ‘some of our business will be systemised through our Franchise Agreement’ with specific products required to be carried by the individual store, but stated that the business can influence what products to sell and how to promote them. The Employee was said to have control of its ‘EDM tool’, or Electronic Direct Mail system, to set pricing and what products to promote and with campaigns through the Dominos offers app to subscribers to the Domino’s Belconnen database, said to be one of the largest of all stores in Australia. Mr Cable also described instances of the Employee initiating the donation of the store’s product during the bushfires that occurred around the region earlier this year and to the hospital during the COVID-19 pandemic, the latter generating unexpected national media for the Domino’s brand on the ‘Sunrise’ morning television program, which was a by-product of a good deed.
In relation to ‘formulating and implementing purchasing and marketing policies, and setting prices’, and ‘promoting and advertising the establishment’s goods and services’, which are two further tasks set out in the ANZSCO, clause 16.4.1 of the Sub-Franchise Agreement states that the Master Franchisee may offer guidance on ‘prices that the Master Franchisee recommends, for the products and services of the Store that in the Master Franchisee’s judgment constitute good business practice’. Additionally, clause 16.4.2 of the Sub-Franchise Agreement provides that the Master Franchisee may require that ‘the prices for the products and services (including through discounts and other promotions) sold by Your Store do not exceed a certain maximum amount or certain minimum amount which is to be determined by the Master Franchisee’.

In addition, the Business Plan dated June 2020 lists ‘development and implementation of local marketing strategies’ as a task of the Managing Directors, not the Store Manager. In this regard, under clause 14.3.1.1 of the Sub-Franchisee Agreement, the business agrees to spend local store marketing on ‘promoting and advertising the Sub-franchised Operation within the Territory’. Clause 14.4 provides that all advertising and promotional material developed by the business must be submitted to the Master Franchisee for approval. Clause 14.1.1 of the Sub-Franchise Agreement states that the Master Franchisee ‘will from time to time formulate, develop, produce, and conduct advertising and promotional programs in the form and media as the Master Franchisee determines to be most effective’ and clause 14.1.4 notes that the business is ‘obligated’ to pay a ‘Marketing Contribution’ to the Master Franchisee said, at Schedule 13, to be an amount equal to a maximum of six per cent of ‘Sales’.
Mr Cable’s letter to the Tribunal dated 7 September 2020 also referred to these tasks and stated as follows:
Anchal manages our pricing for all our EDM marketing and offer App deals via our online tools. As Anchal works full-time in her store she understands the local customers better than anyone. We’ve been able to provide her training and ability to run any form of pricing or promotion she finds suitable to drive customer counts and sales.
…
Anchal has been running Street of the Week campaigns, where she has hand delivered sharp priced delivery flyers into nearby streets to try and increase customer counts to close and profitable customers.
At the hearing, the Tribunal was told that the Employee had created numerous marketing tools and advertising for the business, including designing and distributing vouchers in the local area to grow sales for the business when it has experienced quieter trading periods. The Employee said that she recently formulated a ‘Street of the Week’ campaign which entailed distributing a flyer with a deal for a particular street in the local area and which did not require the Employee to liaise with the Managing Directors in advance of its implementation; the Employee said it was her decision and under her control, although she discussed the results with the Managing Directors. The Employee has also run a ‘business card drop’ at the store where local businesses leave their business card in a box at the store and a winner is picked out to win food and drink from Domino’s, which leads to goodwill, advertising and potential future business for the store. Mr Cable said he and Mr Hutchinson, as Managing Directors, were happy for the Employee to try various initiatives to generate business without their prior involvement.
Mr Cable told the Tribunal that pricing is set through the store’s online tools and on a daily or weekly basis the Employee can set pricing for products. In this regard, the Employee was said to understand both the customers’ and business’ needs and was able to set pricing without input from the Managing Directors. The Employee also monitors on a weekly basis the three critical components to the store’s financial performance, being food, labour and mileage expenditure and has access to the store’s financial statements to monitor this performance.
An online tool used by the Employee lists for the Managing Directors what tasks she has performed and provides them with an overview of task completion across all of their Domino’s stores in circumstances where they are not directly involved in the day-to-day management of the store.
In relation to ‘undertaking budgeting for the establishment’, another task set out under the ANZSCO, the Nominator said that the Employee controls the weekly budget, with food, labour and mileage expenses, she has also identified ongoing savings for the business in relation to payroll tax. The Managing Directors liaise regularly with their Store Managers about the running of the stores and they review the sales figures and set performance targets with the Managers on a monthly basis.
The letter from Mr Cable to the Tribunal dated 7 September 2020 referred to the Employee’s role in performing this task as follows:
Anchal makes the stores [sic] weekly rosters, orders stock as per her store’s requirements, she also prepares her weekly report which includes our three main KPI’s which can be controlled on a daily/weekly basis. She also communicates this information back to her team and sets out goals for the following week on things they need to improve on to ensure at the end of the month the store is profitable.
On a quarterly basis I meet with Anchal to go over our P&Ls and find areas of focus, with this insight she is able to work out ways to improve her store to ensure a better outcome in the following months.
At the hearing, Mr Cable told the Tribunal that there was no monthly budget for the business, but on a daily or weekly basis, its food, labour and mileage can be assessed and controlled by the Employee as Store Manager. The Managing Director meets with the Employee on a monthly and quarterly basis to discuss profit and loss for the business and identify trends and ways to improve performance. For example, during the COVID-19 pandemic, the Employee identified the business could reduce its payroll tax through having staff undertake hospitality and food safety training, which also benefits the business through cross-training staff in many areas of the store.
Mr Hutchinson told the Tribunal that now the Managing Directors have seven Domino’s stores, they have had to step back from direct daily management of each store and their involvement is now largely in the form of overseeing, supporting and coaching their Managers. Mr Hutchinson said the Employee was essentially the franchisee of their Belconnen store and made ‘the main decisions’. Mr Cable agreed that he provided guidance and support to the Employee to continue to improve the store’s performance. Furthermore, in addition to all hiring, training and promotion of employees, the Employee undertakes weekly payroll matters for the store, such as timesheets, annual and other leave, and deals with workers’ compensation matters. Mr Hutchinson added that the Belconnen store was a ‘flagship store’ for the Domino’s Pizza brand and a high performing business, having previously had the highest sales in the world for Domino’s stores and consistently being in the top 10% of stores across Australia in a number of measurements, including profitability. For instance, while sales have remained consistent across the last two completed financial years, profitability has increased by 17% in the most recent full financial year due to initiatives implemented by the Employee. In this way, the Employee was crucial to the store’s success and allows the Managing Directors to focus on their portfolio of Domino’s stores.
Finally, in relation to the tasks of a Store Manager, in his letter to the Tribunal dated 7 September 2020, Mr Cable said that:
I understood that some of the tasks and processes may be standardised across the [Domino’s] brand, however, that is only to ensure consistency of branding across the business. It’s our responsibility as directors to ensure that we implement all requirements under our SFA as well as drive our business on a local level. Due to our plans to continue to grow our organisation, it is at our discretion to hire a manager to run our stores in our absents [sic] which requires them to have suitable skills, experience and perform any duties we outline for them, they’re also obligated to comply with our SFA.
Based on the evidence before the Tribunal, it is satisfied that the Employee is fulfilling the role of a Retail or Store Manager for the Nominator. The Employee is undertaking the majority or core tasks set out in the ANZSCO for a ‘Retail Manager (General)’. The Employee organises and controls the operations of the Domino’s Pizza store at Belconnen and is heavily relied on by the Managing Directors because of her management experience and their involvement in, and ownership of, six other Domino’s stores. Therefore, the Tribunal finds that the criteria under r.5.19(4)(h)(ii)(D) is met. For the avoidance of doubt, the Tribunal also finds that, pursuant to r.5.19(4)(h)(ii)(DA), the occupation of ‘Retail Manager (General)’ is applicable to the Employee, identified under subparagraph (a)(ii), in accordance with the specification of the occupation.
Finally, the relevant Regional Certifying Body, being the ACT Economic Development Directorate, located in the same Territory as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) of the Regulations. The Tribunal is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, all the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
W Frost
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’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)       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
(g)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; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 5026

12 October 2020

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