Goodlife Dental Pty Ltd (Migration)

[2019] AATA 4414

Goodlife Dental Pty Ltd (Migration) [2019] AATA 4414 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Goodlife Dental Pty Ltd

CASE NUMBER:  1707413

HOME AFFAIRS REFERENCE(S):           BCC2017/531633

MEMBER:George Hallwood

DATE:16 July 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 July 2019 at 12:32pm

CATCHWORDS
MIGRATION – nomination – Dentist – base rate of pay requirement not met – wages comprise of undetermined commission – earnings do not include payments that cannot be determined in advance – form of employment contract conflicts with legislation – decision under review affirmed

LEGISLATION
Fair Work Act 2009, s 332
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 2.57A, 2.72, 2.73

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 and Border Protection on 20 March 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 8 February 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subregulation 2.72(10)(c) because:

   a.They were not satisfied that the terms and conditions of employment of the nominee will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location.

   a.They further noted that the Guaranteed Annual Earnings (GAE) of the nominee are $52,000. The Employment Contract of the nominee makes reference to an additional 'bonus' of 30- 40% of commission of the business' gross profits. A person’s earnings do not include payments the amount of which cannot be determined in advance.

4. The delegate was therefore not satisfied that the applicant meets sub-regulation 2.72(10).

5. Dr Connor Willis, a director and shareholder of the applicant Goodlife Dental Pty Ltd, appeared before the Tribunal on 19 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Joanne Bianca Wong. This was a combined hearing with the hearing for AAT file ref 1801405.  

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

7. For the following reasons the Tribunal has affirmed the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

2. The Tribunal has had regard to the material on Department’s file and is satisfied that the application was compliant with the process set out in r2.73:

   ·The business nominated an occupation, “Dentist” under s.140GB(1)(b): r.2.73(1A)(a);

   ·The business identified in the nomination Dr Joanne Bianca Yong, whose associated Subclass 457 visa application was lodged on 11 March 2017, as the person who will work in the nominated occupation: r.2.73(1A)(b);

   ·The business made the application in the prescribed way, used the approved form and paid the correct fee –r.2.73(2), (3), (5) & (9) IMMI 13/063;

   ·The business identified the nominee Dr Yong in the nomination: r.2.73(4A) and r.2.72(5);

   ·The applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and

   ·The nomination included the location, Maddington, Western Australia, at which the occupation will be carried out. Also included was the name “Dentist” and 6 digit ANZSCO code 252312 as the applicant is a standard business sponsor; as well as the relevant certifications mentioned in r.2.72(10).

3. For these reasons the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

1. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

2. Departmental records indicate that the business is a standard business sponsor approved on 20 March 2017 and that approval is still in effect. For these reasons the requirements of r.2.72(4) are met.

Identification of the nominee

1. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

2. Dr Joanne Bianca Yong is the proposed applicant for the visa identified in the nomination as the person who will work as a Dentist. For this reason the requirements of r.2.72(5) are met.

Requirements for existing Subclass 457 visa holders

1. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.

2. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

1. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

   ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

   ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 16/059; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

   ·the location(s) at which the nominated occupation is to be carried out.

2. As part of the nomination, the applicant provided the name of the occupation (Dentist), the corresponding ANZCO code (252312) and the location at which the nominated occupation is to be carried out (Maddington, Western Australia). Accordingly, the Tribunal is satisfied that the required information has been provided in the nomination. For this reason the requirements of r.2.72(8A) are met.

Certification relating to conduct under s.245AR(1)

1. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

2. The Tribunal is satisfied that the required certification has been provided in the nomination. For this reason the requirements of r.2.72(8B) are met.

No adverse information known to Immigration

1. Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

2. There is no evidence before the Tribunal to indicate that adverse information is known to Immigration about the applicant or an associated person. For these reasons the requirements of r.2.72(9) are met.

Specified occupation

1. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

2. The nominated occupation of Dentist and its 6 digit code 252312 correspond to an occupation and 6 digit code specified in IMMI 17/060. This nominated occupation is not subject to any applicability conditions specified in the relevant instrument. For these reasons the requirements of r.2.72(10)(aa) are met.

3. There is no requirement for the nomination to be supported by a specified organisation. For this reason the requirements of r.2.72(10)(b) are not applicable.

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. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

2. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

3. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).

4. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).

5. Information was provided to the Tribunal that was not available to the delegate and including Dr Yong’s contract of employment dated 16 May 2018, the contract of employment of Dr Willis, a letter from Dr Hallett, the Chief Executive Officer of the WA Branch of the Australian Dental Association, and passport confirmation that Dr Yusuf also contracted in the same way as Dr Yong and Dr Willis is an Australian citizen.

6. The term ‘earnings’ is defined in r.2.57A as including:

   ·     the person’s wages;

   ·     amounts applied or dealt with in any way on the person’s behalf or as the person directs; and

   ·     the agreed money value of ‘non-monetary benefits’.

7. The concept of earnings does not include any payments the amount of which cannot be determined in advance, such as commissions, bonuses, incentive based payments and overtime (unless the overtime is guaranteed). This definition of ‘earnings’ is based on the definition in s.332 of the Fair Work Act2009 and it is intended that interpretations of this section will apply to this definition.

8. Dr Yong’s current employment contract is based on the Australian Dental Association Inc HR template. Her contract contains hours of work (38 hours), leave entitlements and salary together with superannuation entitlements (9.5%) and other conditions that also match the template.

9. Dr Yong’s contract of employment does not include a base salary but rather requires a calculation of commission payments. Therefore in this case the annual earnings of the person identified in the nomination are less than the amount specified by the Minister in writing because their pay, being solely calculated as commission, cannot be determined in advance.  

10. Dr David Hallett, CEO of the Australian Dental Association (WA Branch) Inc, provided a letter for the hearing stating “The commission only employment contracts are the most favoured by both practice owners and employee dentists across Australia. The contents of Dr Yong’s contract seem unchanged from the ADAHR template.” He continues “Dr Yong’s annual income over the past two years is certainly consistent with that of her colleagues”.

11. There are two other dentists working in the same practice in the same role as Dr Yong. Dr Connor Willis who is a permanent resident of Australia and Dr Mohammed Yusuf who is an Australian citizen. Both Dr Willis and Dr Yusuf have contracts on the same terms and conditions of employment including wages as Dr Yong.

12. There is no substantial contrary evidence that Dr Yong’s set is not less favourable than the Australian equivalent’s set. Dr Yong was questioned about whether she knew of any evidence that she was being treated less favourably than her colleagues. She said that she did not. She described being told on completion of her degree what to expect in employment contracts and her contract matched what she was told. She also has many friends in the profession and they are all on similar contracts.

13. This issue, considered unsatisfactory by the delegate, has now been resolved to the satisfaction of the Tribunal.

14. For these reasons the requirements of r.2.72(10)(c) are met.

Base rate of pay

1. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 being $53,900.

2. However, this requirement may be disregarded if:

• the base rate of pay of an Australian citizen or resident doing equivalent work will not be greater than the TSMIT,

• the annual earnings are equal to or greater than the TSMIT, and

• the Minister considers it reasonable to do so: r.2.72(10A).

1. The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A as described in paras 32 and 33 above.

2. Consideration of when it will be reasonable to disregard this requirement may be guided by the purpose of the provisions in r.2.72(10)(c) and (cc) to maximise the likelihood that Subclass 457 visa holders can independently provide for themselves in Australia and limit the extent to which visa holders may impose a burden on the broader community or come under pressure to breach visa conditions.[1]

   [1] Explanatory Statement to SLI 2009 No.230, p.7

3. The Explanatory Statement to the regulations inserting the provisions states, by way of example, that it may not be reasonable to consider additional earnings to the extent to which those earnings are not directed toward cost of living expenses; conversely, it may be reasonable to consider the annual earnings where the disposable income is greater than it would otherwise be if their remuneration was structured in such a way that the base rate of pay would be greater than the temporary skilled migration income threshold.[2]

   [2] Explanatory Statement to SLI 2009 No.230, p.9

4. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB) which was relevantly $250,000.

5. Dr Yong’s annual gross pay working an average of 38 hours a week (in accordance with her contract) were;

   ·     $79,397 in the financial year ending 30 June 2018; and

   ·     $115,733.53 from 1 July 2018 to 31 May 2019

6. In employment that depends entirely on commission it is difficult to identify exactly how much the person will earn as it depends on multiple factors: The various rates that can be charged that percentage commission is applied to. The different rates of commission that apply to the hourly billed amount, in this case there are two different rates of commission. Also the amount of billable hours booked. Dr Yong’s commission based pay cannot be predicted.

7. Dr Yong’s contract contains a guaranteed top up payments to an amount “… not less than the Employee would have been entitled to under the National Minimum Wage Order in effect under the Act.” Attached to Dr Yong’s contract is the Health Professionals and Support Services Award 2010 which currently lists Health Professional employee – level 1 at the entry pay point for Dr Yong’s qualifications (pay point 4) at $1,015.10 per week. This is a base wage equivalent of $52,785.20 per year.

8. It is clear from the evidence provided that Dr Yong has averaged 38 hours of work and that she has received pay well in excess of the base rate of pay for the Australian equivalent greater than TSMIT amount specified in the instrument of $53,900. Both her base wage and her earnings (not including any payments the amount of which cannot be determined in advance), however, fall short of the TSMIT amount specified in the instrument.

9. Dr Yong’s annual earnings are less than the income threshold specified in the instrument for r.2.72(10AB).

10. Evidence demonstrates that demonstrated pay rates Dr Yong can independently provide for herself in Australia and not impose a burden on the broader community or come under pressure to breach visa conditions. The issue for the Tribunal to determine is whether the requirements of r2.72(10)(cc) can be disregarded.

11. In order to disregard the requirement of r.2.72(10)(cc) the Tribunal must find:

    ·     the base rate of pay  of an Australian citizen or resident doing equivalent work will not be greater than the TSMIT,

    ·     the annual earnings are equal to or greater than the TSMIT, and

    · the Minister considers it reasonable to do so: r.2.72(10A).

12. The Tribunal finds an Australian citizen or resident doing equivalent work would receive a base rate of pay of $52,785.20 which is not greater than the TSMIT.

13. The Tribunal finds Dr Yong’s earnings, not including any payments the amount of which cannot be determined in advance, are not equal to or greater than the TSMIT.

14. As Dr Yong’s earnings are not equal to or greater than the TSMIT the Tribunal does not need to consider whether the Minister considers it reasonable to disregard the requirement.

15. For these reasons the Tribunal finds that the base rate of pay requirement of r.2.72(10)(cc) is not met.

Certification under r.2.72(10)(e)

1. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

   ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO for Dentist 252312;

   ·the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and

   ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

1. The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons the requirements of r.2.72(10)(e) are met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. Goodlife Dental Pty Ltd is an incorporated dental practice operating in Western Australia since 7 August 2015.  The business operates under the name of Clear Choice Dental from 3 sites, one in Maddington which opened in August 2015 , one in Yokine which opened in 2000 , and one in Joondalup which opened in 1998.

3. The business has three directors who are all shareholders including Dr Connor Willis, Dr Sharma, and Dr Strangio.

4. Dr Connor Willis gave evidence that the practices operate 6 days a week and 8am to 8pm Monday to Thursday and half days on Friday and Saturday.

5. The nominated position is one of three dentists, a part time oral surgeon, a part time orthodontist and two nurses working for the practice.

6. A letter from Ken Thomas of Paragon Consultants Pty Ltd, chartered accountants confirms that they are the accountants of Goodlife Dental Trust and that they are aware that Goodlife Dental Trust has incurred losses from trading. They go on to state that given the ownership of the business and an undertaking from the directors of the business they believe the business has the financial capacity to pay Dr Yong’s salary for the two year nominated period.

7. The Tribunal is satisfied that the position associated with the nominated occupation is genuine, it is a skilled occupation and is genuinely needed by the nominating employer.

8. For these reasons the requirements of r.2.72(10)(f) are met.

Employment under contract

1. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.

2. The applicant has provided the Tribunal with a copy of the signed contract of employment dated 16 May 2018 in respect of the nominee. For these reasons the requirements of r.2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

2. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

Labour Market Testing

1. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

2. Occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification (ANZSCO Skill Level 1).

3. The ANZSCO classification of a Dentist (ANZSCO 252312) requires a level of skill commensurate with a bachelor degree or higher qualification (ANZSCO Skill Level 1) and the relevant qualification is not considered protected under legislation. It is exempt from labour market testing as set out in IMMI 13/137.

4. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

Concluding paragraphs

1. Goodlife Dental Pty Ltd meets almost all of the requirements as a sponsor of a subclass 457 visa applicant. The nominee in this instance, Dr Yong, is a highly qualified professional that is filling a shortage in the labour market. Unfortunately the form of employment contract that is most popular in the dental industry in Australia is not a good match with the migration legislation and regulation. The Tribunal has found the base rate of pay requirement of r.2.72(10)(cc) is not met.

2. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

George Hallwood
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)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

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

(iv) a party to negotiations to a work agreement (other than a Minister); and

(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.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

(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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.