GOLOG PTY LTD (Migration)

[2018] AATA 2727

GOLOG PTY LTD (Migration) [2018] AATA 2727 (22 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GOLOG PTY LTD

CASE NUMBER:  1516802

DIBP REFERENCE(S):  BCC2015\3066641

MEMBER:Kate Timbs

DATE:22 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes the decision to approve the nomination.

Statement made on 22 June 2018 at 5:23pm

CATCHWORDS
Migration – Standard business sponsor nomination – Transport Company Manager – Whether the nomination corresponds to a ‘specified occupation’ – Whether the sponsor employs less than 5 employees – Where majority of staff originally hired as contractors – Where staff later recognised as part-time employees – Whether the terms and conditions of employment are no less favourable – Where position is paying lower than the industry average – Position would not be offered on more favourable terms – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 2.72

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 to refuse to approve the nomination by Golog Pty Ltd (the company) under section 140GB of the Migration Act 1958 (the Act) and regulation 2.72 of the Migration Regulations 1994 (the Regulations).

2. On 20 October 2015, the company applied for approval of a nomination of an occupation for a Subclass 457 visa. On 24 November 2015, the delegate refused to approve the nomination.

3. The company applied for review of that decision on 7 December 2015 and the Tribunal heard the application for review on 25 October and 19 December 2017.

CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence considered

1. The Tribunal considered documents in the Department’s file for the approval application and documents provided by the company through its migration agent, Mr Peng Cheng. At hearing, Mr Leon Chimenti and Ms Fabiane Harumi Kondo gave evidence. Mr Zanon Chimenti is the company’s director and Ms Kondo is his partner and an employee of the company.   

Approval of a nomination

1. The Minister must approve an application for approval under section 140GB if the applicant meets relevant criteria in regulation 2.72 and section 140GBA that are listed in the headings below. To deal with the company’s application for review, the Tribunal, considered whether that is the case.

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with regulation 2.73. The Tribunal finds that is the case for the following reasons.

   ·The company nominated the occupation of Transport Company Manager as an occupation under section 140GB(1)(b) (regulation 2.73(1A)(a) and (4A)).

   ·The company identified Mr Leon Zanon Chimenti in the nomination as the person who will work in the position related to the occupation and he has applied for a Subclass 457 visa (regulation 2.73(1A)(b) and (4A)).

   ·The company applied for approval of the nomination using the approved form and paid the correct fee (regulation 2.73(2), (3), (5) and (9)).

   ·The company advised that Mr Zanon Chimenti will work in the occupation; it provided the related ANZSCO code 149413 and advised of the location at which the occupation is to be carried out (regulation 2.73(4A)).

Nominator is a standard business sponsor

1. The Department’s records show the company has Standard Business Sponsorship (SBS) from 10 May 2018. It therefore satisfies regulation 2.72(4).

Identification of the nominee

1. As noted above, the company identified Mr Zanon Chimenti as the visa applicant who will work in the nominated occupation. It therefore satisfies regulation 2.72(5).

Requirements for existing Subclass 457 visa holders

1. Regulations 2.72(6), (7A) and (10)(g) apply if the nominee holds a Subclass 457 visa. Mr Zanon Chimenti does not hold a Subclass 457 visa and the requirements do not apply in this case.

Information about the nominated occupation

1. The company satisfies regulation 2.72(8A) because it nominated the occupation of Transport Manager with the related ANZSCO code and it advised of the location at which it is to be carried out.

No adverse information known to Immigration

1. Regulation 2.72(9) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or that it is reasonable to disregard such information. For these purposes, “adverse information” has the meaning given in regulations 1.13A and includes information about non-compliance with industrial laws.

2. The Department did not provide any adverse information to the Tribunal and it infers there is none known to Immigration. It also infers a delegate of the Minister found that the company satisfied the same requirement before he/she recently approved it as an SBS (regulation 2.59(g)). The Tribunal therefore finds it satisfies regulation 2.72(9).

3. The company has conceded in the course of these proceedings that it has not complied with some industrial laws and has undertaken to remedy those breaches. The information is not known to Immigration at the time of this decision because the Minister is not a party to the proceedings. However, the Tribunal will provide the information to the Department and it will be known when it deals with any later applications (for example, if the company applies for nomination of a position under regulation 5.19). A delegate will have regard to its efforts to remedy its non-compliance when considering whether to disregard that information.

Specified occupation

1. Subclause 2.72(10)(aa) requires that the nominated occupation corresponds to an occupation specified by the Minister in a written instrument and that the occupation is applicable to the person identified in the nomination in accordance with any specifications (or caveats) made in that instrument.

2. The Minister has specified Transport Company Manager as an occupation in the IMMI 17/060[1]. Section 8 provides that the specification does not apply if the position:

   ·predominantly involves responsibility for low-skilled tasks;

   ·is in a business that has an annual turnover of less than $1,000,000; and

   ·is in a business that has less than five employees.

   [1] Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017

3. Mr Zanon Chimenti works in the position and told the Tribunal that he spends almost all his time managing the business operations. Another employee assists him to supervise the drivers and Ms Kondo does the routine administrative tasks. He said he drives trucks only when there is no alternative. He said that happens when something goes wrong and it is no more than once every three to four weeks. The Tribunal takes into account the gross income of the company and the number of employees and it is satisfied the position does not predominantly involve responsibility for low-skilled tasks.

4. The company has grown since it applied for approval of the nomination and provided BAS showing gross income of more $250,000 in each quarter in the 2017 financial year and the first quarter of the 2018 financial year. Mr Zanon Chimenti advised the business has continued to grow and the Tribunal is satisfied that it has annual turnover of more than $1,000,000 at the time of this decision. 

5. The company’s organisation chart showed 19 drivers and three other employees, including Mr Zanon Chimenti, a driver supervisor and Ms Kondo who does administrative work. He said the company pays two of the drivers as employees (with a tax file number) although one is not working and the company’s workers compensation insurer pays him. He said the other drivers were paid as subcontractors (with an Australian business number). On the first day of hearing, it suggested the company might not have five employees if that were the case.

6. The company then obtained advice from an industrial lawyer that all the drivers are employees, rather than contractors. The Tribunal notes the advice was produced for the purpose of the proceeding. However, it canvases the usual legal tests to determine whether a worker is an employee and, in the Tribunal’s view, the conclusion is unsurprising (because, on Mr Zanon Chimenti’s evidence, the company exercises a very high the level of control over the way the workers perform their duties and they do not provide their own tools of trade). The Tribunal also notes the advice is not in the company’s financial interests because it is liable for past underpayment of wages and superannuation and must meet its future obligations. As noted above, the company has undertaken to remedy any relevant breach. For those reasons, the Tribunal accepts that the drivers are employees and it follows the position is not in a business with less than five employees.

7. The Tribunal is also satisfied that the occupation is applicable to Mr Zanon Chimenti who has experience performing the duties of the position and has relevant qualifications (including a Diploma of Management and a Diploma of logistics).

8. The Tribunal has found the nominated occupation corresponds to an occupation specified by the Minister in a written instrument and that it is applicable to Mr Zanon Chimenti in accordance with the relevant caveats. It therefore satisfies regulation 2.72(10)(aa).

9. There is no requirement in the instrument that the nomination be supported by a specified organisation. In that case, regulation 2.72(10)(b) is not relevant to the application.

Terms and conditions of employment

1. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

2. No Australian citizens or permanent residents perform equivalent work at the same location and, in that case, the company must determine the terms and conditions of employment that would otherwise be provided by a method specified by the Minister (regulation 2.72(10AA)). The relevant instrument is IMMI 09/113.[2] There is no relevant industrial award or agreement and, in that case, the relevant terms and conditions of employment must be determined by reference to “relevant information” including remuneration services, the Government’s Job Outlook and job vacancy advertisements.

   [2] Specification of Method to Determine Terms and Conditions of Employment that would be Provided to an Australian Citizen or an Australian Permanent Resident to Perform Equivalent Work in the Same Workplace at the same Location

3. The contract of employment provides for the company to pay Mr Zanon Chimenti a salary of $60,000 plus superannuation with no other relevant benefits. At hearing, Mr Zanon Chimenti advised that the company’s migration agent recommended the salary. That is not “relevant information”. However, the company provided a job advertisement for a Transport Manager with a salary of $58,000 and the Tribunal referred to information on Job Outlook and the remuneration surveys on Payscale.com and Indeed.com and the information on. The Tribunal notes the salary is lower than the average pay of approximately $72,000 reported for the occupation on Indeed.com and Job Outlook. However, the information on Payscale.com and Indeed.com is that there is a wide range of salaries offered for the occupation from approximately $52,000 to $107,000. Despite its growth, the company’s business is a relatively small enterprise for the industry and the Tribunal infers it could recruit a Transport Company Manager at the lower end the pay range. It would not pay more than necessary and, having considered that “relevant information”, the Tribunal finds it would not offer more favourable terms and conditions to recruit anyone else to the position, whatever their migration status.

4. In that case, the Tribunal finds the terms and conditions of employment for the position will be no less favourable than those the company would provide to an Australian citizen or permanent resident performing equivalent work at the same location. It therefore satisfies 2.72(10)(c).

Base rate of pay

1. The Tribunal also finds that the rate of pay exceeds the temporary skilled migration income threshold specified in IMMI 13/028.[3] In that case, the company satisfies regulation 12.72(10)(cc).

   [3] Specification of Income and Annual Earnings

Certification under regulation 2.72(10)(e)

1. The company has certified the following in writing as part of the nomination:

   ·The tasks of the position include a significant majority of the tasks of the occupation of Transport Company Manager listed in ANZSCO.

   ·Mr Zanon Chimenti performs the duties of the occupation for the business operated by the company.

   ·Mr Zanon Chimenti’s qualifications and experience are commensurate with Skill Level 2 for a Transport Company Manager in ANZSCO.

2. In that case, the company satisfies the requirements for certification of particular matters in regulation 2.72(10)(e).

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

2. According to ANZSCO, a Transport Company Manager organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. The duties include

   ·organising the purchase and maintenance of transport vehicles, equipment and fuel

   ·liaising with clients to determine requirements and providing customers with advice and information and handling complaints

   ·receiving orders and bookings, and planning and implementing transportation schedules

   ·ensuring goods are stored and transported in conditions that will maintain their quality

   ·arranging collection and delivery of vehicles and goods

   ·maintaining business records and preparing operational statements and reports

   ·coordinating activities associated with the arrival, departure, loading and unloading of trains

   ·ensuring compliance with occupational health and safety regulations

3. The company provided a list of corresponding duties performed by Mr Zanon Chimenti and he and Ms Kondo gave consistent evidence about the work he performs, and will continue to perform, for the company. It accepts that evidence and finds he currently performs the occupation of a Transport Company Manager for the company.

4. The company has grown significantly since the delegate’s decision. By the time of the first hearing, it had 22 employees, owned five trucks and operated six trucks on behalf of a principal contractor. In that case, the Tribunal is satisfied that performing the tasks listed in the dot points for the company is a full-time workload. It finds the work performed by Mr Chimenti is necessary for the efficient operation of the company’s business and that the position of Transport Company Manager is genuine. The company therefore satisfies regulation 2.72(10)(f).

Employment under contract

1. The company provided a copy of a contract of employment to the Department. It satisfies regulation 2.72(10)(h) if it “will engage [Mr Zanon Chimenti] only as an employee” under that contract of employment.

2. Mr Zanon Chimenti is the owner and director of the company and the employment contract is not an arms-length agreement. However, nothing prevents a company from entering into an employment relationship with a director and there is no evidence to demonstrate the employment contract is a sham. It is satisfied it will engage Mr Zanon Chimenti as an employee.

3. The Tribunal notes he will continue to have responsibilities as the company director in addition to his duties as an employee. However, the company has appointed him to that position rather than “engaged” him to perform those particular duties. There is no evidence it will contract with him in any other capacity other than as an employee.

4. In that case, the Tribunal finds that the company “will engage [Mr Zanon Chimenti] only as an employee” and that it satisfies regulation 2.72(10)(h).

Labour Market Testing

1. A Transport Company Manager has an ANZSCO Skill level 2, which is commensurate with education to the diploma level or at least three years of relevant experience. In that case, the company is exempt from the labour market testing requirements in section 140GBA.

CONCLUSION

1. The Tribunal finds the company meets all the applicable criteria for the nomination to be approved. In that case, it will set aside the decision under review and substitute the decision to approve the nomination.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes the decision to approve the nomination.

Kate Timbs
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(9)The Minister is satisfied that either:

(a)there is no adverse information known to Immigration about the person or a person associated with the person; or

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)       are provided; or

(ii)      would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)      if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)     unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)       the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.