J&B Investors Pty Ltd (Migration)

J&B Investors Pty Ltd (Migration) [2021] AATA 5555 (16 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J&B Investors Pty Ltd
CASE NUMBER:  1838174
HOME AFFAIRS REFERENCE(S):          BCC2017/2031703
MEMBER:De-Anne Kelly
DATE:16 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 16 November 2021 at 9:49am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – genuine need – small-town supermarket – organisation chart – job description – ANZSCO tasks – higher level tasks which require managerial decisions – duties of position more closely aligned with retail supervisor – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
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 18 December 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 8 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(B) of the Regulations because the applicant did not demonstrate a genuine need to employ a person in the nominated position of Retail Manager ANZSCO 142111.
The applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by Mr Amanjeet Singh MARN: 0964645 and later by Mr Vikram Bir MARN: 0851838.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Postponements, adjournments and extensions of time.
The applicant requested and was granted an adjournment of 19 minutes during the hearing.
Evidence
The Tribunal advised the applicant that evidence that would be considered was information and documents provided to the Department with the original application and subsequently; the evidence at hearing and any information or documents provided to the Tribunal following the hearing.
Documentation is listed at Schedule 1 and was considered by the Tribunal.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents. It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. It was noted that the agent lodged documents the day prior to the hearing and when queried by the Tribunal as to why they had not complied with the Presidents direction advised that they were not provided the documents by the employer.
The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice. What is before the Tribunal is the same issue before the department delegate, the question of the genuine need for the nominator to employ a person in the nominated position of Retail Manager.
The applicant has been aware of this concern since the review application was lodged on 31 December 2018 and had almost three (3) years to provide evidence and information to support their case.
The applicant did not put forward any matters that would enliven concerns regarding procedural fairness or natural justice. As such, the Tribunal did not allow the applicant a formal opportunity to file post-hearing submissions or evidence.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 8 June 2017, the applicant J&B Investors Pty Ltd trading as Adelong Supermarket, part of the Foodworks franchise, lodged a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of Retail Manager (ANZSCO 142111) on $50,000 per annum in favour of Ms Kavita Sahota to be employed at Adelong, NSW.
Mr Akash Bhardwaj, the director of J&B Investors Pty Ltd, represented the company and advised that the business was a Foodworks franchised supermarket in the small town of Adelong. They supply the locals’ needs with grocery, gardening, hardware and liquor against their large competitor Woolworths. Mr Bhardwaj has only this business and lives with his family including two children in the town. He advises that it is hard for the owner to manage the whole business. The opening hours are 7.00AM – 8.00PM and they have staff who look after all the sections of the business. Mr Bhardwaj acquired the business in 2015 and managed the store and all the staff himself until they lodged the employer nomination in June 2017. It is very hard with the hours and his family commitments.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.
The job description for the nominated position is shown below.
Duties and Responsibilities
a)Determining product mix, stock levels and service standards at Store.
b)Supervision of staff engaged in the store's day to day operations.
c)Insuring (sic) all staff is aware of safety and security policies and ensuring those policies are met.
d)Promoting and advertising the establishment's goods and services.
e)Undertaking budgeting for the establishment.
f)maintaining records of stock levels and financial transactions
g)Ensuring the store complies with company and Legislative hygiene, health and safety requirements.
h)Maintain the minimum operational standards as set out by the company respect to customer service and labour control.
i)Attendance at company meetings that may be required from time to time.
j)Meeting all responsibilities outline in the managers reference guide.
k)Help train any new team members.
l)Performing all relevant tasks as instructed by the franchise owner.
The ANZSCO tasks for Retail Manager can be found on the Australian Bureau of Statistics website and are shown below.
It was noted from the Organisation chart that the nominee is shown as “Full time - staff in liquor” outlet. There is also a part time staff member shown under the nominee as working in the liquor section of the store. However, if the nominee is working full time in the liquor section and the only other staff member in that section is part time it reasonably suggests that the nominee is serving customers liquor on an almost full time basis and may not be acting as the Retail Manager. The director is also shown at the top of the organisation chart indicating that he retains a high-level oversight of the business operations and would reasonably be responsible for many of the higher-level decisions. This was consistent with the director’s advice in the hearing that this is his sole business and income, he lives in the town of Adelong and works in the business.
The positions tasks (a)(d)(e) and (f) match word for word the ANZSCO tasks (1), (3), (6) and (5) as shown below.
Determining product mix, stock levels and service standards at Store.
Promoting and advertising the establishment's goods and services.
Undertaking budgeting for the establishment.
Maintaining records of stock levels and financial transactions.
The Tribunal further noted the nominated positions task (h) states ‘Maintain the minimum operational standards as set out by the company (with) respect to customer service and labour control” however there was scant information provided on the standards set out by the company such as a company “Policy and Procedures Manual” and as such the Tribunal gives limited weight to this task. It was noted that task (j) made reference to meeting all the responsibilities in the “managers reference guide” but again there is scant evidence of any guide and what responsibilities it covers. The Tribunal noted that task (l) requires the nominee to perform all relevant tasks as instructed by the franchise owner being the director and again this may indicate that he is the person who instructs on the tasks to be performed and assumes this higher level responsibility.
The Tribunal put these concerns to the director under s359AA of the Act and he requested and was granted a 19-minute adjournment.
The director then responded and advised that the liquor section of the store is not as big compared to other shops and that the store is a small-town supermarket. The nominee places the orders for the liquor on Monday and product is delivered on Thursday. He advised the tasks the nominee undertakes from Monday to Friday as follows.
On Monday, two staff open the store and the nominee takes the newspapers and she places the liquor order over the phone.
On Tuesday it is the same; the store opens at 7.45am and the nominee looks after the newspapers and looks after customers. She may print out specials for the groceries and liquor and fruit and vegetables.
On Wednesday they receive the stock from Metcash on 4 to 5 pallets and the director and staff replenish the stores stocks and print labels for the stock.
On Thursday, they receive the liquor order and check for breakages and then replenish the stocks.
On Friday, they look after the customers and take small orders on the phone and bag the orders such as small cakes and chicken orders.
On Saturday, the nominee does not work but the director works in the store.
On Sunday, the director works in the store and places the grocery order.
The director advised that he only works four (4) hours Monday to Friday as he works on the weekend in the store.
The agent asked to address the tasks and stated that the nominee has management tasks as well as managing the staff and safety duties. He stated that she looks after the rosters for staff and for seniors and juniors. She checks the fridges each morning and checks for spoilage of food. She deals with customer complaints and speaks with the owner about resolving the complaints. The nominee takes interviews on behalf of the owner with representatives of suppliers to undertake special purchases. The growth of the business is occurring year on year. The Tribunal allowed the agent to make a statement however this evidence could have been given by the director who would have first hand knowledge of the work undertaken by the nominee which the agent is not in a position to be aware of and as such the Tribunal can give limited weight to this evidence by the agent.
The Job Description
The positions tasks (a)(d)(e) and (f) match word for word the ANZSCO tasks (1), (3), (6) and (5) as shown below.
Determining product mix, stock levels and service standards at Store.
Promoting and advertising the establishment's goods and services.
Undertaking budgeting for the establishment.
Maintaining records of stock levels and financial transactions.
As such the Tribunal can place little weight on these tasks for the nominated position. The fact that many of the tasks in the Job Description have been copied ‘word for word” from the ANZSCO tasks suggests that the applicant does not have a genuine Retail Manager position available which would involve some context in the Job Description rather than a generic list of tasks from the ANZSCO. The Tribunal also considers that these higher level tasks would be undertaken by the director who works 40 hours a week in the business and is very hands on and involved as he places the order with Metcash for the grocery lines each week and would of necessity have to maintain stock levels and financial transaction in order to assess the stock required for the following trading week. The Tribunal also considers that he would not leave the budgeting for the business to the nominee since he is so hands on and committed to the business operation.
The Tribunal considers the nominated positions task (h) states ‘Maintain the minimum operational standards as set out by the company (with) respect to customer service and labour control” and (j) made reference to meeting all the responsibilities in the “managers reference guide” but there is scant evidence of any guide or operational standards and what responsibilities it covers. As such the Tribunal can give little weight to the tasks (h) and (j).
The Tribunal notes the weekly tasks the director advised were undertaken by the nominee which includes the newspapers, serving customers and placing the liquor order, printing out the specials for the week and the director consults with her on the grocery order for the week.
The Tribunal noted that task (l) requires the nominee to perform all relevant tasks as instructed by the franchise owner being the director and again this may indicate that he is the person who instructs on the tasks to be performed and assumes this higher level responsibility.
The Tribunal is mindful that ANZSCO is not prescriptive, however it is also aware of the need for qualitative analysis as stated by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30]. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision-making regarding r.5.19(4)(h)(ii)(D):
what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another…
The job description for the nominated position is shown below with the tasks struck through that the Tribunal can give limited weight to as discussed above.
Duties and Responsibilities
a.~~Determining product mix, stock levels and service standards at Store~~
b.Supervision of staff engaged in the store's day to day operations.
c.Insuring (sic) all staff is aware of safety and security policies and ensuring those policies are met.
d.~~Promoting and advertising the establishment's goods and services.~~
e.~~Undertaking budgeting for the establishment.~~
f.~~maintaining~~ ~~records of stock levels and financial transactions~~
g.Ensuring the store complies with company and Legislative hygiene, health and safety requirements.
h.~~Maintain the minimum operational standards as set out by the company respect to customer service and labour control.~~
i.Attendance at company meetings that may be required from time to time.
j.~~Meeting all responsibilities outline in the managers reference guide.~~
k.Help train any new team members.
m)Performing all relevant tasks as instructed by the franchise owner.
The remaining tasks largely involve supervising and training staff and as the director advised assisting with serving customers, replenishing stock, ordering liquor, checking liquor orders, and assisting the director with the grocery order.
When the ANZSCO tasks for Retail Manager are shown below with the tasks struck through that the Tribunal considers it can give little weight it is observed that many of the higher level tasks are absent. The Tribunal does not consider that the nominee undertakes tasks (2) “formulating and implementing purchasing and marketing policies and setting prices” because the director places the grocery order although consulting the nominee and it is acknowledged that the nominee places the liquor order. There is scant evidence of the marketing undertaken by the business beyond the nominee printing out weekly specials. The Tribunal considers that the director would determine the prices set as he is in the store every week day for four (4) hours and over the weekends, so he would reasonably maintain overall control of the operations including setting prices.
~~1.     determining product mix, stock levels and service standards~~
~~2.     formulating and implementing purchasing and marketing policies, and setting prices~~
~~3.     promoting and advertising the establishment's goods and services~~
4.     selling goods and services to customers and advising them on product use
~~5.     maintaining records of stock levels and financial transactions~~
~~6.     undertaking budgeting for the establishment~~
7.     controlling selection, training and supervision of staff.
8.     ensuring compliance with occupational health and safety regulations

The Tribunal has considered the overall responsibility from the ANZSCO which states, “RETAIL MANAGERS organise and control the operations of establishments which provide retail services.”
There is a letter dated 10 July 2017 that states there is a genuine need for the position to ensure smooth operation of the management of the store and re-iterates many of the tasks in the job description which the Tribunal has carefully considered and can give limited weight as discussed above.
The Tribunal has considered the letter to the Tribunal from the applicant dated 15 September 2020 giving an overview of the store and it’s products. The applicant states that they have a genuine need for the position because the business is open seven (7) days a week from 8.00am to 7pm. He states that the nominee starts her shift half an hour before opening and finishes half an hour after closing. The director states that he and the nominee both work 40 hours per week and that he assists with the Management for the remaining 40 hours of the week not covered by the nominee. The Tribunal does not consider that a business being open some 80 hours per week necessitates a director and a retail manager because the majority of ANZSCO tasks for Retail Manager 142111 are higher level tasks which require managerial decisions for example “determining product mix….”; “formulating and implementing purchasing …”; Maintaining records…” and “undertaking budgeting. These are not time specific tasks that require the person undertaking the task to be present in the store 40 hours per week. The Tribunal for these reasons can give little weight to this argument that an 80-hour operation necessitates a Retail Manager position.
It is accepted that the nominee works an 8 hour day as advised in the correspondence to the Tribunal although this is inconsistent with the advice of the director that the nominee arrives half an hour before opening at 8.00 and leaves half an hour before closing at 7.00pm which would necessitate a 12 hour working day. It is also accepted that during the week the nominee may well supervise the other staff, induct and train staff and ensure they meet workplace health and safety requirements.
The director states in the letter of 15 September 2020 that the nominee recruits, hires and trains new employees and manages rosters; maintains store inventories; keeps track of earnings and creates reports from them for the director; displays, cleans and rotates the merchandise; has responsibility for promotions and marketing including specials and ensures compliance with occupational health and safety regulations. This statement is not consistent with the evidence the director gave in the hearing where he advised that he is responsible for the grocery order and thus maintaining the inventory and advised that all staff are responsible for unpacking the order and replenishing the stock. The Tribunal prefers the updated evidence the director gave in the hearing rather than the 2020 letter.
The director states that he has a need for the position because he wishes to grow the business and has acquired a news agency and Lotto business; the opening hours of 80 hours per week are shared equally between the nominee and the director; he has other financial responsibilities which keep him busy during the week; the previous retail manager had resigned and they have the financial capacity to pay the salary of the position. He states that the nominee is essential to the business. The Tribunal has taken account of the resignation of the previous retail manager but this does not mean there is a need for a Retail Manager nor does the understandable desire for the director to grow the business necessitate a need for a Retail Manager. The Tribunal can place limited weight on the director’s statement that he has other financial responsibilities since this is inconsistent with his statement in the hearing that this is his only business and sole source of income and he works in the business and has no other source of work or income. The nominee may well be essential to the business but that does not mean that the position is actually that of a Retail Manager.
Taking all factors into account such as the generic nature of many of the tasks in the job description of the nominated position which attract little weight; the scant evidence of “operational standards” and a “Managers reference guide” for some of the nominated position tasks; the directors evidence of the nominee’s weekly tasks which revolve largely around lower level tasks such as customer service, supervising other staff, stock replenishment, printing specials, ordering liquor and consulting with the owner on the grocery order and weighing these against the fact the director has a strong hands on involvement in the business seven (7) days a week leads the Tribunal to conclude that the director organises and controls the operations of the store. This is consistent with the Business Plan that was submitted with the original application which states, “the business is managed by the director Mr Akash Bhardwaj on a daily basis especially during peak times as required.”
The Tribunal notes the ANZSCO position Retail Supervisor 621511 has the following tasks which correspond to the tasks of the nominee such as serving customers; dealing with complaints; rostering, hiring and managing other staff; ordering liquor and printing specials for the stock.
oensuring that customers receive prompt service and quality goods and services
oresponding to customers' inquiries and complaints about goods and services
oplanning and preparing work schedules and assigning staff to specific duties
ointerviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
oinstructing staff on how to handle difficult and complicated sales procedures
oexamining returned goods and deciding on appropriate action
otaking inventory of goods for sale and ordering new stock
oensuring that goods and services are correctly priced and displayed.
oensuring safety and security procedures are enforced
As such, the Tribunal finds the nominated position is not that of a Retail Manager since the director is undertaking the higher-level tasks of a Retail Manager. The Tribunals finds there is not a genuine need for the nominator to employ a paid employee to work in the position of Retail Manager under the nominator’s direct control because the position is not that of a Retail Manager but more akin to a Retail Supervisor.
Accordingly, the requirements of reg.5.19(4)(h)(ii)(B) are not met.
Accordingly, the requirements of reg 5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
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).
Schedule 1
Documents including the following were provided with the original application.
1)Online application for employer nomination dated 8 June 2017.
2)Market salary analysis including sample advertisements.
3)Bank statements for the applicant.
4)Business activity statements for 2015, 2016,
5)Financial statements and company tax return from FY 2016, FY 2017, FY 2018
6)Orders to suppliers including tax invoices.
7)Advertisement for the position on Adzuna dated 5 May 2017.
8)Lease agreement.
9)Photos of the interior and exterior of the store.
10)ASIC and ABN registration.
11)Employment contract dated 7 June 2017.
12)Regional certifying advice dated 8 November 2017.
13)Business plan for the applicant.
14)Letter dated 10 July 2017.
15)Candidate for the position responding to advertisement.
16)Selection of BAS statements.
Documents including the following were provided with the review application.
17)Letter to the Tribunal from the applicant dated 15 September 2020 giving an overview of the store and it’s products. The applicant states that that they have a genuine need for the position because the business is open seven (7) days a week from 8.00am to 7pm. He states that the nominated position starts her shift half an hour before opening and finishes half an hour after closing. The director states that he and the nominee both work 40 hours per week and that he assists with the Management for the remaining 40 hours of the week not covered by the nominee.
The director states that the nominee recruits, hires and trains new employees and manages rosters; maintains store inventories; keeps track of earnings and creates reports from them for the director; displays, cleans and rotates the merchandise; has responsibility for promotions and marketing including specials and ensures compliance with occupational health and safety regulations.
The director states that he has a need for the position because he wishes to grow the business and has acquired a news agency and Lotto business; the opening hours of 80 hours per week are shared equally between the nominee and the director; he has other financial responsibilities which keep him busy during the week; the previous retail manager had resigned and they have the financial capacity to pay the salary of the position. He states that the nominee is essential to the business.
18)Employment Contract dated 21 December 2019.
19)Personal tax return for nominee.
20)Bank statement for the nominee.
21)Payslips for the nominee.
22)Assorted BAS statements from FY 2018, FY 2019
23)Financial statement FY 2019.
24)Contract for purchase of the newsagency business.
25)Bank statements for the applicant FY 2019.
26)Invitation from the Tribunal to provide information dated 5 August 2021.
27)Registration documents from ASIC and ABN.
28)BAS FY 2020.
29)Taxation estimate FY 2019 and FY 2020.
30)Company tax return for FY 2019 and FY 2020.
31)Organisation chart.
32)Regional certifying body advice.
33)Advertisement for the position.
34)Employment contract dated 17 August 2021.
35)BAS statements FY 2020, FY 2021.
36)Selection of emails between the nominee and suppliers.
37)Letter from the agent dated 17 August 2021.
38)Letter from the director dated 3 November 2021 addressing the candidates who responded to the advertisement.
39)Resumes from the candidates.
40) Market salary analysis with comparisons of advertisements for other vacancies.

[2021] AATA 5555

16 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing