FRESH AS PIZZA PTY LTD (Migration)

FRESH AS PIZZA PTY LTD (Migration) [2021] AATA 596 (21 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FRESH AS PIZZA PTY LTD
CASE NUMBER:  1811041
HOME AFFAIRS REFERENCE(S):          BCC2017/104113
MEMBER:Warren Stooke AM
DATE:21 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 January 2021 at 3:02pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Domino’s Pizza – Retail Manager – tasks and duties of nominated position – whether more consistent with the occupation of Retail Supervisor – role performed by the nominee – 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 28 March 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 (the Regulations).
The applicant applied for approval on 9 January 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 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) and r.5.19(4)(h)(ii) of the Regulations because it was not been demonstrated that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.
The applicant, Mr Vijender Sharma appeared before the Tribunal on 13 October 2020 to give evidence and present arguments, together with Ms Tiffany Day. The Tribunal also received oral evidence from Amanda Emiller Mel, the nominee.
The applicant stated that he understood the delegate refused the application because the delegate considered the position to be supervisory and not managerial.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
Mr Vijendar Sharma and Ms Tiffany Day own three Domino’s Stores, two being in Cairns Queensland, and one in Port Douglas Queensland. Port Douglas is situated 80kms from Cairns, where both Directors reside. There are two companies which own these three stores, Fresh as Pizza PTY LTD has Smithfield and Port Douglas stores, whilst Hotas Pizza PTY LTD has Redlynch store. It was also submitted that the Smithfield store is currently one of the busiest in Queensland, which is where Ms Tiffany Day is working fulltime.
The nominee signed a contract of employment with Fresh as Pizza Pty Ltd on 9 October 2020, for a minimum of 2 years employment conditional on the grant of a 187 visa, with a salary of $52,650 per annum and superannuation contribution to Sun Super.
The applicant provided a copy of the RSMS Certificate of approval dated 10 January 2017 by the Cairns Chamber of Commerce for the position of Store Manager – ANZSCO 142111 with the nomination of Amanda Emillier Mel on a salary of $47,037 per annum.
The applicant provided evidence that the nominee possessed a Diploma of Leadership and Management from the Harvest Education Technical School, which was undertaken from 20 June 2016 to 9 January 2017 and a Bachelor of Commerce (Marketing and Public Relations); a Diploma of Business undertaken from 20 June 2016 to 5 January 2017; and a Diploma of Media and Communications awarded on 18 November 2013.
The applicant provided evidence that the nominee completed an IELTS English language test on 29 October 2016 with an overall score of 8.0.
The applicant submitted an ASIC Registration document that identified that Fresh as Pizza Pty Ltd was registered on 10 October 2014 with an ABN of 55 602 263 730.
The applicant provided a copy of an organisation chart that showed that the nominee reports to Ms Day, Director, as the Store Manager and that this position has 5 casuals and 5 part-time employees as direct reports.
Evidence was submitted that identified the financial status of the business in 2019 with a total income of $3,125,709; a net tax income of $89,861 and total salary and wages payments of $975,446. In addition, the financial status of the business in 2020 was identified as having a net profit of $48,396, which included the expense of the nominee’s salary.
Evidence of Mr Sharma – Principal Director and Ms Day – Director
The applicant provided evidence that he is a director of the business, which operates Domino’s Pizza outlets in Port Douglas and two in Cairns and that his partner is Ms Tiffany Day. The restaurants were described as dine-in and takeaway/delivery.
It was stated that Mr Sharma has 70 per cent equity in the business and Ms Day 30 per cent equity.
Mr Sharma stated that he is a director of six businesses and works about 10 hours per week in-store. He stated that he has not worked at the Port Douglas franchises for more than one year and that he oversees the instore operations of the stores, where he attends to industrial relations complaints; staff and store manager issues and the maintenance of facilities. He stated that he is currently assisting with the Port Douglas store since the manager resigned, where there are three instore employees and five drivers.
The applicant stated that the Fast Food Award 2010 applies to employees engaged in the businesses and that a Fair Work Information Statement was provided to the employees.
The director, Mr Sharma, described his role, as not having much to do with Domino’s and that the following obligations were required under the franchise agreement:
a.Providing approval for orders, where asked for by the manager;
b.Signing the franchise agreement with Dominos;
c.Effects change and sets trading hours (when the franchise is to open);
d.Identifies where products can’t be sold;
e.Setting the standards for the store;
f.The establishment is owned by the Coles group and the business is a third party, where Dominos holds the lease agreement;
g.Payment for utilities;
h.Dominos manages the payroll, after submitted by the Retail Manager;
i.Dominos provides the advertising material, but the Retail Manager places the order for stock;
j.Letter box drop undertaken by Dominos with the Retail Manager advising where to market;
k.Dominos provides the log regarding specials, which is attended by the Retail Manager;
l.The Retail Manager needs to come up with the specials each week, which is set up by the Director as a standard procedure.
The applicant provided evidence that the nominee required the following competencies to be engaged for the position of Retail Manager:
a.Completed DOTTI team member training;
b.Completed Pizza College consistent with Domino’s Pizza standards, policies and procedures;
c.Must have Food Safety Supervisor Certificate and basic safety (OH&S) and security policies and procedures (Food Safety Standards of Australia and New Zealand);
d.Recommended to hold a First Aid Certificate.
e.Image standards
f.Principles of handling the rush
g.Cash handling policies
Further, it was submitted that the responsibilities for the position, included the following:
a.Be punctual and present in the correct Domino’s uniform;
b.Fully accountable for the store;
c.Cash Control;
d.Customer Service;
e.Determining product mix, stock levels and Service Standards, where there is a requirement to meet quality and replace perishables;
f.Formulating and implementing purchasing and marketing policies and setting prices (Specials are priced at $18 and the store offers VIP cards);
g.Promoting and advertising the establishment’s goods and services;
h.Undertaking budgeting for the establishment (;
i.Maintaining records of stock levels and financial transactions;
j.Store cleanliness and organisation:
k.Recruiting, training and developing exceptional Team members:
l.Lead by example; uphold all Domino’s policies and standards;
m.Ensure Team Members comply with policies and standards;
n.Accountable for all operations criteria including food, rosters, cash handling;
o.Comply with Food Safety regulations;
p.Conduct staff meetings;
q.Queensland Store Managers must ensure their store is compliant with Child Employment Laws;
r.Safety of all team members;
s.Sales building – box topping/wobble boards/car tops etc;
t.Maintenance and cleanliness of company vehicles;
u.Vehicle GPS system management (if applicable);
v.Foster a fun, can-do attitude;
w.Customer feedback actioned within 24hrs;
x.Complete and submit week end paperwork to head office on time;
y.Maintain effective communication skills at all times.
z.Any further duties as required by the Franchisee.
It was submitted that the responsibilities for the position, also included the nominee undertaking the banking with the local ANZ through an overnight drop bag and retaining an $800 float for the next working period.
The applicant stated that the trading hours of the business was from 3.00pm to 9.00pm Sunday to Thursday and from 3.00pm to 10.00pm Friday and Saturday. The nominee works from Tuesday to Saturday and then another manager will fill the position.
The applicant gave evidence that the nominee prepares signage in her own time and that the nominee has additional remuneration through bonuses based upon sales.
The nominee’s duties also include: cash control; training of staff; ordering stock; order marketing material; monitors the time for making pizzas and compliance with Dominos’ guidelines; organises stock; procures vegetables through local buys; prepares sales report, which is sent through to Domino’s and maintains the inventory that is submitted to Dominos.
It was stated that the nominee has worked at Dominos Port Douglas since 2016, and she has received multiple awards and recommendations, including recently a dinner with the CEO of Domino’s, Mr Don Meij. The nominee has also completed Pizza college and gained her food safety supervisor certificate.
Evidence of Ms Amanda Emillier Mel
The nominee stated that she was employed with Fresh as Pizza Pty Ltd in September 2016 after graduation and responded to an advertisement based upon her previous knowledge.
The nominee confirmed that she possessed a Bachelor of Commerce; Diploma of Leadership and Management; Diploma of Business and Diploma of Media and that she had completed years 11 and 12 in Cairns.
The nominee stated in evidence that the business is predominantly take-away with the capacity to accommodate up to 10 dine-in customers and has 3 instore employees and 4 drivers.
The nominee provided evidence that the position of Store Manager includes the following aspects and duties:
a.In charge of all aspects of the business, including food, staff and cash;
b.Reports to the Director, Ms Tiffany Day;
c.Seeks advice regarding routes over the rosters;
d.Manages stock and paperwork, with advice from the Directors;
e.Manages local marketing and actual sales;
f.Responsible for store maintenance; cleaning; customer service;
g.Preparation of financial plans, budgeting and marketing;
h.Cash control.
The nominee stated that she had been with the company for 4 years and had learned a lot of skills and stated: “the job is like my baby”.
The nominee confirmed to the Tribunal that she does not have health insurance.
Representative Submission
The Representative submitted that the definition provided in the ANZSCO descriptor is a guide only and that not every task can be met and that the position covered is not supervisory but it is managerial.
The Representative submitted that the matter should be set aside and the nomination should be approved.

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). 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 applicant lodged the application to nominate the nominee for the position of Retail Manager – ANZSCO Code: 142111 with the business on 9 January 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
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 applicant provided evidence that the nominating business has an ASIC Registration document that identified that Fresh as Pizza Pty Ltd was registered on 10 October 2014 with an ABN of 55 602 263 730.
The Tribunal is satisfied that the business, based upon the information presently before the Tribunal, is actively operating lawfully and is directly operated by a principal shareholder.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years.
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.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
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 having already been employed for three years. On a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has signed a contract of employment with Fresh as Pizza Pty Ltd on 9 October 2020, for a minimum of 2 years employment conditional on the grant of a 187 visa, with a salary of $52,650 per annum and superannuation contribution to Sun Super and that the position was designated as Store Manager (Retail Manager) on the organisation chart.
Further, evidence was provided that the nominee was employed as a casual from September 2016 and prior to the nominee’s appointment to the position of full-time Store Manager (Retail Manager).
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.
The Tribunal is satisfied that the terms and conditions of employment are 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.
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.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal 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.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 9 October 2020 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant provided evidence that the nominee was provided with a Fair Work Information Statement at the time of engagement.
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 (see legislative instrument IMMI 16/059 that applied at the time of application), 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 Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 6 January 2017 by the relevant Regional Certifying Body, the Cairns Chamber of Commerce that assessed the nomination application and confirmed the position could not be filled locally for the occupation of Retail Manager – ANZSCO Code: 142111 for the nominee Ms Amanda Emillier Mel on a salary of $47,037 (at the time).
Further, the Tribunal is satisfied, based upon the evidence, that there is a genuine need for the position of Retail Manager to work under the direct control of the business owner/director and that the position was advertised locally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies. The Tribunal is also satisfied that the applicant engaged in market testing of the position prior to appointment of the nominee, who responded to the advertised position and was engaged as a casual, at the time of advertising for the position.
The Tribunal is also satisfied that the business has the capacity to financially support the payment of wages and entitlements to the nominee based upon a positive cash flow and net profit, after the payment of all entitlements to employees and business expenses.
Additionally, the Tribunal is satisfied that the business has sufficient turnover and profitability, after the payment of wages and superannuation (including the nominee) and will, in the Tribunal’s view, warrant the engagement of a Retail Manager, particularly given that the applicant has responsibilities that cover the operation of 3 stores over a geographic spread of 80kms from Cairns to Port Douglas in North Queensland and that the position has direct reports. In these circumstances, the Tribunal is satisfied, that a Retail Manager is required for the business to manage the full scope of the operation, including product procurement, pricing and management responsibilities, which are handled by the nominee. As such, the Retail Manager, duties are consistent with the ANZSCO descriptor for a Retail Manager, under the direct control of the Director.
The Tribunal is satisfied, based upon the evidence of the applicant and the evidence of the nominee, that the position includes all of the tasks outlined in the position descriptor for a Retail Manager – ANZSCO Code: 142111. In this regard, the applicant confirmed in evidence to the Tribunal that the nominee performs the following tasks:
a.determining product mix, stock levels and service standards;
b.formulating and implementing purchasing and marketing policies, and setting prices;
c.promoting and advertising the establishment's goods and services;
d.selling goods and services to customers and advising them on product use;
e.maintaining records of stock levels and financial transactions;
f.undertaking budgeting for the establishment;
g.controlling selection, training and supervision of staff;
h.ensuring compliance with occupational health and safety regulations.
The Tribunal has considered the comparison of the ANZSCO descriptor for the occupation of Retail Supervisor – ANZSCO Code: 621511 and is satisfied that whilst the position includes a majority of these tasks, the nominee also carries out the tasks of a Retail Manager – ANZSCO Code: 142111 in the breadth of the role performed by the nominee.
Accordingly, 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.

Warren Stooke AM
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).

[2021] AATA 596

21 January 2021

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