JD Management Services Pty Ltd ATF Burnell Trust (Migration)

Case •

[2021] AATA 2488

•

28 June 2021

JD Management Services Pty Ltd ATF Burnell Trust (Migration) [2021] AATA 2488 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JD Management Services Pty Ltd ATF Burnell Trust

CASE NUMBER:  1818942

HOME AFFAIRS REFERENCE(S):          BCC2017/3755201

MEMBER:De-Anne Kelly

DATE:28 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 28 June 2021 at 11:31am

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Accommodation and Hospitality Manager – genuine need for the employee – employment for at least two years – tasks of the position correspond to the nomination occupation – skill shortage within the hospitality industry – many listed tasks undertaken by other staff – tasks of organising and controlling operations – position aligns to Head Housekeeper role – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 359
Migration Regulations 1994, rr 2.72, 5.19

CASES

Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 758

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 Home Affairs on 18 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

  2. The applicant applied for approval on 13 October 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

  3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

  4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(i) of the Regulations because the business did not demonstrate a genuine need to employ the person as a paid employee, to work in the position under the nominator’s direct control.

  5. The applicant appeared before the Tribunal on 11 February 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.

  6. The applicant was represented in relation to the review by its registered migration agent, Ms Suzanne Weel MARN: 0316130.

  7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

  9. On 13 October 2017 the applicant JD Management Services Pty Ltd ATF Burnell Trust ABN: 78 719 489 436 lodged an employer nomination visa subclass 186 in the Temporary Residence Transition (TRT) stream for the position of Accommodation and Hospitality Manager nec ANZSCO 141999 on $54,000 per annum in favour of Mrs Kanchan Walia.

  10. Ms Jennie Burnell is the director of JD Management Services Pty Ltd and advised the business was acquired on 5 February 2016 and involves holiday and permanent letting as well as management of the building called The Grand Apartments located on the esplanade at Marine Parade, Labrador QLD 4215. There are 146 apartments in the building and a third are in the leasing pool.

  11. The tax returns for 2018 and 2019 show a business with strong revenue and healthy profits.

  12. Documents including the following were provided with the original application.

    1)Acknowledgement of nomination application received dated 13 October 2017.

    2)Online application for nomination dated 13 October 2017.

    3)Letter dated 3 February 2016 from previous owners of the business stating nominee commenced work on 25 January 2014 as a full-time guesthouse manager.

    4)ABN look up, trust deed,

    5)Settlement statement for the purchase of the business dated 5 February 2016.

    6)Employment contract dated 12 June 2013 signed by then manager and the nominee.

    7)Job Description - Guest House/Services Manager

    Summary

    The general purpose of this position is to ensure all guest house business operations, including customer service, are up to the standard of the operational specifications.

    Guest House/Services managers organize and control the operations of accommodation and related services in a variety of accommodation establishments including but not limited to hotels, motels, and holiday apartments, to provide guest accommodation, meals and other services including the supervision of frontline staff.

    Duties and Responsibilities include but are not limited to:

    •   Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary;

    •    Greet guest warmly and perform registration procedures;

    •    Facilitates guest departures providing accurate statements and ensuring guest satisfaction   and collecting payments due;

    •   Attend meetings and training as requested;

    •   Assessing and maintaining customer satisfaction standards;

    •   Produce and analyse operational reports;

    •   Assist with recruiting, selection and training of front desk, reservations and night audit staff;

    •   Overseeing financial/accounting/purchasing activities;

    •   Assist and/or supervise the opening and closing of the property;

    •   Implementing and maintaining compliance with occupational health and safety regulations;

    •   May assist in training other frontline staff as and when required.

    •   Assist with marketing activities to enhance the customer's experience;

    •   Perform other duties as and when required.

    8)PAYG payment summaries, payslips for the nominee from FY 2014 and bank statements.

    9)Bank statements for the applicant.

    10)Financial statements for the applicant for FY 2016, FY 2017

    11)Tax return FY 2017

    12)Further copy of the job description.

    13)Market salary analysis.

    14)Evidence of meeting training benchmarks.

    15)BAS statements FY 2016, FY 2017, FY 2018

    16)Employment contract dated 28 July 2017 signed by both nominee and applicant.

    17)Letter of support from the accountant dated 15 May 2018.

    Documents including the following were provided with the review application.

    18)Notification of refusal of nomination application dated 18 June 2018 including notice of decision.

    19)A further copy of all documents were submitted with the review application.

    20)Extract from the website.

    21)Tax return 2018.

    22)Further copy of the job description and ANZSCO extract from Australian bureau of statistics website for unit group 1419 other accommodation and hospitality managers.

    23)Market salary analysis.

    24)Financial statements for the applicant for FY 2018 and FY 2019.

    25)ASIC registration.

    26)Grant notice dated 13 December 2013 for the nominee in nominated occupation “accommodation and hospitality managers nec.”

    27)Notice of approval of the nomination dated 31 May 2017 for the applicant for subclass 457 Visa stream for occupation/code-accommodation and hospitality managers nec - 141999.

    28)Balance sheet FY 2020.

    29)Letter from the registered migration agent dated 24 September 2020 addressing why there is a genuine need for the position and citing a skill shortage within the hospitality industry; the position of guest services manager reports directly to the owner; a further position description; a reference to the determination in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 (Cargo First); an acknowledgement that the tasks recorded under the ANZSCO unit group of 141999 does not specifically provide an actual “list” of duties for a guest services manager and an observation that ANZSCO is to be used as a guide and not a definitive example.

    The agent states the position is well suited to the business and fits within the regular, ongoing business activity of the employer. She states the nominee has the required skills and knowledge sought by the employer which are affiliated with the general description of duties of the nominated occupation as described by the unit group of ANZSCO code 1419. She states without a guest services manager the company will likely suffer given the fact it is the manager’s duty to ensure guests are happy and comfortable and accommodation is meeting their needs which is the primary focus for the employer. She states that negative reviews published online are detrimental to a business while positive feedback is beneficial to the business.

    She states it is imperative that the manager ensures that the accommodation both private and guest arriving during the guests stay on after the guest departure is as smooth as possible. The manager must ensure the rooms and facilities are maintained and cleaned to a high standard and that the relevant utilities are stocked with appropriate equipment items e.g. extra bedding, kitchenware, laundry powder, towels, toiletries et cetera. The manager must immediately address customer queries feedback or concerns. The manager must ensure staff are trained accurately in order to properly book accommodation for customers and to appropriately handle customer queries et cetera. The nature of the position is demanding is a position requires a guest service manager to oversee the work colleagues and contractors, whilst also meeting the demand of guests. She submits that the position of guest service manager within the employer’s company is a strategic position, responsible for the day-to-day running of the customer management of the business and has a direct impact on the financial performance and general views of the company. She states the nominee’s appointment to the position resulted in an increase of customer satisfaction to the business.

    The agent addresses the other eligibility criteria for the grant of the nomination.

    30)Notification of approval as a temporary business entry standard business sponsorship dated 31 May 2017 of subclass 457 Visa.

    31)Profit and loss for FY 2020.

    32)BAS 2018, 2019, 2020.

    33)Payroll summary for the nominee to 30 June 2020.

    34)Notification of approval as a standard business sponsor dated 21 September 2020.

    35)Bank statements for the applicant for capital Y 2020

    36)Employment agreement dated 25 August 2020 signed by applicant and nominee.

    37)PAYG for the nominee for FY 2019.

    38)Superannuation statement for the nominee.

    39)Superannuation payments for the nominee to 30 June 2020.

    40)Invitation from the Tribunal dated 20 November 2020 to provide information.

    41)Letter from the registered migration agent dated 3 December 2020 with list of attached documents and stating the applicant meets the requirements under regulation 5.19 for approval of the nomination.

    42)Organisation chart with director; guest services manager (nominee) and building manager (Ms H). A receptionist (Ms B), 2 x maintenance personnel and contract cleaners shown reporting to the nominee.

    43)Letter from the applicant dated 20 November 2020 explaining that they have the management rights for The Grand Apartments which has extensive common areas for the enjoyment of guests; reception Monday to Friday from 8.30am to 5.00pm, Saturday 9.00am to 12.00pm and Sunday 9.00am to 10.30am. They employ a Building Manager to deal with body corporate matters and the nominee as Guest Services Manager  and now employ a part-time receptionist whose tasks are receiving visitors at the front desk, by greeting them and providing their room keys and settling payments; answering, screening and forwarding incoming calls; booking and allocating rooms in the system; receiving and sorting daily mail and performing other clerical duties such as filing, photocopying and faxing as required.

    They employ two maintenance workers who maintain the complex including common areas and any repairs and maintenance around the property.

    The cleaners are contractors who clean all rooms and ensure that common areas are clean.

    The applicant submitted a table showing the typical roles and responsibilities of the nominee with a % of time devoted to each of the tasks. It is noted that the Job Description is still the same however some subtasks have been added.

Duties Task breakdown

Percentage of time spent performing

task
Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary

·     Oversees reception / lobby operations

·     Oversees parking operations as necessary

·     Oversees pool / spa operations

·     Oversees gym operations

·     Oversees housekeeping & cleaning operations

·     Overseas maintenance operations

·     Overseas functions / external bookings for the boardroom and other areas

 33%
Greet     guests   warmly     and    perform registration procedures;

·     Greeting guests warmly

·     Assist with check-ins and registration procedures as required (these duties do not involve general

reception duties)

 20%
Facilitates guest departures providing accurate statements and ensuring guest satisfaction and collecting payments due;

·     Oversee guests bills

·     Assisting with check-out and ensuring that guests are provided with a tax invoice / tax receipt statement of their stay

 20%

Attend     meetings     and     training            as requested;

·     Attending meetings with management when required

5%
Assessing   and    maintaining     customer satisfaction standards;

·     Anticipates and intervenes in all incidents of guest dissatisfaction and attempt to satisfy guests within the company policy

·     Answering questions from guests

·     Ensuring that guests are comfortable during their stay

 5%
Produce and analyse operational reports;

·     Report anything considered a health and safety hazard including requesting for any areas to be cleaned or fixed

by cleaners or maintenance staff

 1%

Assist with recruiting, selection and training of front desk. Reservations and

night audit staff

·     Assisting in recruiting and/or selection of front-line positions (e.g. receptionists)

Not required at present
Overseeing    financial    /    accounting    / purchasing activities;

·     Responsible for cash handling including float and banking.

·     Oversee purchasing activities

 5%

Assist and / or supervise the opening and closing of the property;

·     Assist and supervise the opening and closing of the property

1%
Implementing        and       maintaining compliance with occupational health and safety regulations;

·     Ensuring staff are maintaining compliance with occupational health and safety regulations

·     Reporting anything that is a health / safety concern

·     Ensuring guests are acting in a safe manner in the pool / BBQ / gym areas

·     Prevent abuse and/or destruction of business

property

 5%
May assist in training frontline staff as and when required;

·     Training new guest services departmental personnel (receptionists) as and when required in regard to handling customer matters

and booking accommodation

 When required

Assist in marketing activities to enhance

the customer’s experience

·     Ensure emails sent to client post stay are up to

company’s standards and are in line with policy when requesting for customer feedback

·     When a customer provides a good review at the count, asking to perhaps help other protentional customers know of their experience by leaving a google review, or social media review (e.g.

Facebook).

 5%

44)Payslips for the nominee FY 2020.

Documents including the following were provided following the hearing.

45)Letter dated 5 March 2021 from the registered agent.

Adjournments and extension of time.

  1. The applicant requested a brief adjournment which was granted.

  2. The applicant requested an extension of time to respond following the hearing and was granted a further seven days to respond.

    Section 359AA of the Act

  3. 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; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

    Section 359AA provides as follows:

    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

    if the Tribunal does so—the Tribunal must:

    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.

    Genuine need to employ nominee: r.5.19(3)(i)

  4. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

    The hearing.

  5. Mrs Burnell advised that she has a genuine need for the position.

    “Maybe, because I can’t do everything. It’s generally a two-person management position. I do employ a person who does the body corporate side of things for me. I do the business side of things but then I do need other staff to do the rest of it. Especially Kanchan’s (the nominee’s) job, I can’t run around doing everything.”

  6. Body corporate work is undertaken by Ms H as part of the contract. She looks after the building. This involves organising trades, maintenance, lifts, garden, pool, spa and outside of the building such as leaks on balconies. Ms H is onsite 24 hours a day, although this is not a requirement of the contract, and lives in the apartment lot #203. For night-time check-ins Ms Burnell contracts an off-site guest night service which manages this but if there is a matter that cannot be managed by the service, they would contact Ms H on site. There are three fire wardens, Ms Burnell, Ms H and the nominee.

  1. During the day the front desk is overseen by the nominee, there is a receptionist who does the basics and the nominee is usually there, but she is in other places as well. Ms H and Ms Burnell are not always on site. Ms Burnell advised that she, Ms H and the nominee are the three fire wardens. The Tribunal then moved to asking the nominee about her role and asked the name if the company that managed the fire callouts. She said she could not remember.

  2. The nominee advised that Mrs Burnell is onsite every day sometimes three hours or more and works Saturday as well but not Sunday. Mrs Burnell advised there is a lot of paperwork involved in the trust account and business accounts, inspect everything or matters that Ms H beings to her attention and she helps Ms H as she has a large job. There are matters ahead for the body corporate such as bathroom and window leaks, leaks from garden to restaurant, painting in new year and general upkeep.

  3. They have a new receptionist Ms M, who is going to be working 4 days per week although at the moment it is 5 days per week. The number of days per week at present allows Ms Burnell to take some time off.  Ms M works 8.30am to 5.00pm. When she finishes at 5.00pm the offsite guest night service commences. She was being trained by the nominee and by Ms Burnell.

  4. The cleaners are contract cleaners and the nominee checks their work, Ms Burnell stated.

  5. There is two types of maintenance; maintenance for the rooms and maintenance for the building. Mr M does the building maintenance as far as he is legally allowed to undertake the maintenance and Ms H does some of the maintenance in the rooms again what they are legally allowed to undertake otherwise they call plumbers, electricians etc.

  6. There is a software program that manages their lettings called REI Master. It is an involved process and it has a booking screen and a maintenance screen. It has all the tariffs inserted and provides a weekly or monthly summary of the letting including occupancy, income, expenses etc. There are a massive range of reports that can be generated. Ms Burnell employs an accountant for BAS statements and tax returns.

  7. The night audit is their afterhours service and they have an online service that allows phone calls and conversations to be downloaded.

  8. The nominee advised she works a 38-hour week and her hours vary during the week but she starts at 9.00am after the receptionist starts at 8.30am and finishes at 3.00pm.

  9. They have a very good website which was custom built for them, but they can change some things such as photos.  Tariffs are loaded to the REI system. They rely on the website to attract customers from OTA such as booking.com, trivago and other sites. Ms Burnell has an advertising guru who is very “switched on” and places a lot of advertising on Facebook and Instagram which is going very well at present. He sets up deals with companies such as Groupon and has different ideas for advertising.

  10. The Tribunal advised the applicant under s359AA of the Act that although it had not made up its mind, it appeared that a significant number of the tasks listed in the job description were undertaken by other staff. The Tribunal put this concern regarding whether the position was really a Guest Services Manager position earlier in the hearing in the context of r.5.19(3)(d)(i) and whether the nominee would be employed for at least two years in the position of Guest Services Manager. The Tribunal asked and received Ms Burnell’s approval to take her statements in support of satisfying that regulation and use them towards this regulation. The Tribunal advised that it was plain that Ms Burnell valued the nominee but this was a separate matter to whether the position of Guest Services Manager was undertaken by the nominee and whether there existed a genuine need for the position of Guest Services Manager. If the Tribunal considered this it may find that the application did not satisfy r.5.19(3)(i).

  11. The Tribunal in the hearing addressed the tasks in the job description as follows.

    “directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary”.

  12. The evidence suggests that reservation is largely handled by the receptionist Ms M and reception is handled by the receptionist as the title would suggest. The Tribunal advised that room service and assisting in housekeeping activities may be performed by the position.

    “greet guests warmly and perform registration procedures”.

  13. The Tribunal advised that the receptionist do this as the guests arrive during the day and after hours the after-hours service would handle guests.

    “facilitating guest departures, providing accurate statements and ensuring   guest satisfaction and collecting payments”.

  14. The Tribunal stated that this appeared to be undertaken by the receptionist as she is front of house.

    “attend meetings and training”

  15. The Tribunal advised that it did not have any evidence that the nominated position attended any meetings and training. It is not clear what those meetings would be. Ms H and Ms Burnell are responsible for the body corporate meetings.

    “Assessing and maintaining customer satisfaction standards”

  16. The Tribunal advised that the director Ms Burnell had given an extremely comprehensive overview of her business and was a very professional, impressive businesswoman and that as such she would set the customer satisfactions standards for the entire establishment and it would be unlikely that she would delegate such an important aspect of managing this large facility.

    “produce and analyse operational reports”.

  17. The Tribunal advised that producing the operational reports appeared to be done automatically by the software system, REI Master and analysing those reports would be a responsible task undertaken by the director Ms Burnell given they deal with expenses, income and factors that go to the heart of whether the business is profitable or not.

    “assist with recruiting, selection and training of front desk reservations and night audit staff”.

  18. The Tribunal noted that both Ms Burnell and the nominee had trained the receptionist and so that task may by partly undertaken by the nominated position.

    “overseeing financial accounting, purchasing activities”.

  19. Although the task financial accounting was vague, The Tribunal stated that the accountant would undertake that task since they lodge BAS statements and tax returns. It may be that the position undertakes some purchasing.

    “assist or supervise the opening and closing of the property”.

  20. The Tribunal advised that it seemed the receptionist undertook this role. The Tribunal noted that the applicant Ms Burnell has been genuine, professional and forthright in her evidence to the Tribunal for which it thanked her. However, there were quite specific criteria that needed to be met in terms of tasks and responsibilities that needed to be satisfied to ensure the position was actually what it was purported to be.

  21. So the Tribunal was troubled that the tasks of the position did not appear to correspond with the tasks of the ANZSCO Guest Services Manager or with the tasks in the job description and therefore the position may not be that of Guest Services Manager. If the Tribunal considered this information it may conclude the nominee was not performing the tasks corresponding to a Guest Services Manager and there may not be a genuine need for Ms Burnell to employ the nominee as a paid employee to work in the position of Guest Services Manager under her direct control and the application may not satisfy r.5.19(3)(i).

  22. The applicant requested a brief adjournment which was granted.

  23. When the hearing resumed Ms Burnell advised that with regard to reception duties she needs two receptionists when it is busy between say 10am and 2.00 or 3.00pm and the nominee does the check-ins and checkouts; speaks to the customers regarding concerns or if they are happy and directs them to putting something on Trip Advisor or Facebook. She does the banking which the receptionist is not permitted to do because it needs access to Ms Burnell’s bank account. Payments are made through the receptionist and she can do cash payments although most are credit card or EFTPOS. With regard to meetings, the nominee does not have any input into the body corporate meetings as those are handled by Ms Burnell and Ms H as that contract is separate to the letting contract. They tend not to have formal meetings regarding the letting side of the business; it is more that the nominee comes down and “fills me in on everything that is going on, or if I need to handle something myself, or if she wants advice or anything like that”.

  24. With regard to the customer satisfaction standards, Ms Burnell does set the standards but the nominee is in charge of making sure that they are correct or if she thinks they need updating she will come and tell Ms Burnell and they will reset them. She trusts her (the nominee’s) opinion when it comes to the rooms or what customers say. She can virtually remember what cushions are in what room, so the applicant trusts the nominee with that. With regard to the  reports and purchasing products; the nominee knows what is required and she can order although she is not going to go out and spend thousands and thousands without Ms Burnell’s permission but usually the orders are pretty standard so she can order those.

  25. The reports are maintenance reports for the rooms, and she will pass these to Ms H or Mr M to attend to the issues or she will organise plumbing, electrician or air conditioning technicians as required.

  26. Only Ms Burnell has access to the back-end financials.

  27. Regarding the  opening and closing, the receptionist will only open and close the reception but  there is the building to open to make sure it is all clean and tidy, the pools, the sauna so although she does not open reception which is just opening a door, she does the rest of it.

  28. When it comes to the reception duties, the receptionist will answer phone calls, but the nominee will handle any complaints that come through although they do not get too many of those. The after-hours service email through any concerns or complaints and the nominee handles those as well.

  29. The nominee has been there for seven years and Ms Burnell for five years, so the nominee knows the building inside out.

  30. The applicant responded in the hearing that the ANZSCO did not cover everything the nominee does, and it does not cover holiday lettings. The nominee is desperately needed and the ANZSCO is vague and the nominee does so much more. The agent stated that the ANZSCO tasks for this position are very brief and require the nominee to organise and control the operations. Ms Burnell tailored the job description to suit her needs. Ms Burnell stated, “Can’t lose her.”

    Submission following the hearing.

  31. Following the hearing, the registered migration agent submitted a letter dated 5 March 2021 stating.

    The description under Accommodation and Hospitality Managers nec ANSZCO 141999 does not set out clearly defined tasks of the occupation group, rather, advising that the position ‘organises and controls the operations of  the establishments’ and that minor group 141 Accommodation and Hospitality Managers ANZSCO reports that “Accommodation and Hospitality Managers organise and control the operations of establishments which provide accommodation and hospitality services”.

    She quotes Cargo First Pty Ltd v Minister for Immigration BP [2015] FCCA 2091 (Cargo First), in which it was held that a qualitive analysis must be undertaken in determining whether the position was what it is purported to be.

    Inconsideration of the above, we are instructed that the duties and tasks performed by the nominee in the position of Guest Services Manager is demonstrated as follows.

    She then provided a table of the duties of the nominated position as below.

ANZSCO 141999 – Guest House/Services Manager

·     The general purpose of this position is to ensure all guest house business operations, including customer service, are up to the standard of operational specifications.

·     Guest House/Services Managers organise and control the operations of accommodation and related services in a variety of accommodation establishments including but not limited to hotels, motels, and holiday apartments, to provide guest accommodation, meals and other services including the supervision of frontline staff.
Position duties and tasks undertaken
Duty Description Details

1.     Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary

a)    Liaise with reception/front-desk regarding any room moves or special needs and act on any given information

b)    Issue any keys and/or room lists, and cleaning schedules to cleaning staff/contractors at the beginning of their shift and collect same at the end of the shift

c)     Check all work given to the cleaners and maintenance staff throughout the day to ensure standards are being adhered to and work is being completed in a timely manner

d)    Regularly inspect guest rooms, public areas/common areas (i.e. pool and BBQ areas) for cleanliness, appearance and to make sure these areas are kept to the business’s standards

e)    Ensuring all maintenance work in rooms, laundry and public/common areas are rectified prior to releasing rooms back to front desk

f)   Ensure stock levels are maintained (i.e. stationary, in-line amenity requirements etc)

g)    Check all stock and order what is required including cleaning chemicals

h)    Check all stock and order what is required including bedding (sheets etc) as and when required

i)   Check all blankets, cushions etc and organise for laundering if necessary

j)   Check all arrivals for cleaning, presentation and make sure everything is working e.g lights

k)     Organise for maintenance for the apartments and oversee same to ensure completion to standards

l)   Organise for carpet cleans and balcony cleaning and oversee same to ensure completion to standards

m)   Organise trades such as plumbers, electricians, carpet cleaners and direct same to relevant areas requiring attention.

n)    Guide contractors to relevant area requiring work (i.e. electricians etc when needed)

o)    Approve roster lists for front-desk staff as  required.

p)    Approve roster list/times for cleaners having regard to guest check-in and check-out times.

2.     Greet guests warmly and perform  registration procedures.

a)    Check arrival list and organise all requirements such as beds, cots, hire chairs, promotional items etc

b)    Greeting guests on check-in and perform registration procedures

c)     Print all arrival and departure reports

3.     Facilitates guest departures providing accurate statements and ensuring guest satisfaction and collecting payments due

a)    Check all departures for any missing items & damage to charge the guest

b)    Charge the guest for missing items

c)     Print service letters and take them to the rooms

d)    Monitoring staff performance to ensure that guests are happy and that the rooms and common/public areas (i.e. pool and BBQ areas) are well-run

e)    Assist with departures any guest compliments/complaints

4.     Attend meetings and training as requested

a)       Maintain knowledge of local laws and relevant business company hygiene, health and safety regulations (i.e. particular following COVID-19 health & safety measures)

5.     Assessing and maintaining customer  satisfaction standards.

a)    Handle queries from customers on the businesses polices and services

b)    Handle any customer complaints including  in online forums.

6.     Produce and analyses operational   reports

a)       Report on any maintenance requests and  relevant estimation for services

b)       Assist in preparation of policy and procedures particular for front-line staff regarding government mandates for COVID-19 health and safety guidelines, as and when required

c)       Ensure that any items requiring replacement in the rooms such as cutlery, crockery, irons etc are actioned and organise to charge the owner/report on same

7.     Assist with recruiting, selection and training front desk, reservations and night audit staff.

a)    Assisting owner with recruiting, interviewing and selection of staff where necessary/required (particularly for    receptionists/front-desk staff)

b)    Training reception/front-desk team members and monitor performance.

c)     Training staff on answering guest queries about businesses polices and services

8.     Overseeing financial/accounting/purchasing activities

a)        Raising request regarding purchasing of     needed stock etc, and attending to purchasing of same

b)        Banking

9.     Assist and/or supervise the opening and closing of the property

a)    Ensure the front desk area/foyer is opened and/or closed properly (i.e. ensuring no private or confidential information is left on the desk when closing)

10.   Implementing and maintaining compliance with occupational health and safety regulations

a) Ensuring that there are no obstructions on the floors in public spaces

b) Implement and monitor health and safety guidelines (generally) and in response to COVID-19 requirements mandated by the government

c)  Ensuring that the business, residents, guests and other visitors to the building are compliant with COVID-19 safety measures, including ensuring appropriate signage is maintained.

11.   May assist in training other frontline staff    as and when required

a)        Training frontline staff (i.e. reception) in regard to their duties

b)        Training front-line staff in regard to updated measures (i.e. ensuring guests fill-in & sign the appropriate COVID-19 check in information form/s.

12.   Assist with marketing activities to enhance the customer’s experience

a)        Respond to positive and negative feedback in online customer reviews

b)        Assist with and respond to customer queries about local travel and/or tourist destinations and restaurants etc

13.   Perform other duties as and when required

a)        Assisting with customer luggage if necessary or directing customers re to appropriate baggage carriers

b)        Attend any fire alarm and ensure that it runs smoothly

c)        Taking calls when required (i.e. if receptionist/s are sick)

  1. The agent states that In accordance with Cargo First, “we submit that the position is genuine, and following  a qualitative analysis of the position and the tasks undertaken, it is clear that the position of Guest Services Manager is what it purports to be.”

  2. It is noted that the agent stated in her letter of 24 September 2020 that

    “in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 (Cargo First); an acknowledgement that the tasks recorded under the ANZSCO unit group of 141999 does not specifically provide an actual “list” of duties for a guest services manager and an observation that ANZSCO is to be used as a guide and not a definitive example.”

  3. It is common ground  that the ANZSCO 141999 has not set out a detailed set of tasks for Accommodation and Hospitality Managers nec ANZSCO 141999 however it has given two broad responsibilities, for want of a better term, namely “organises and controls the operations of the establishments “ and for the minor group adds the rider that the establishments “provide accommodation and hospitality services”. It is common ground that the applicant has two contracts for the Grand Apartments, one for the Body Corporate Services and the other to manage the leasing or provision of “accommodation and hospitality services”.

  4. The Tribunal must consider whether the nominated position “organises and controls the operations of the establishment” with regard to the provision of accommodation and hospitality services from the Grand Apartments. It will consider the amended Job Description provided on 5 March 2021.

  5. It is noted that the version of the Job Description contained in the Table provided by the agent dated 20 November 2020 shows the percentage of time spent performing each task and that some of the tasks in the breakdown of tasks vary in a minor way from the task breakdown provided on 5 March 2021. The Tribunal considers the most recent version of the Job Description and the Task breakdown is the one that the applicant wishes to be used as evidence and the agent made that clear in her letter of 5 March 2021.

    The amended Job Description dated 5 March 2021.

    Task #1of the Job description.

  1. Task #1 of the Job Description is “Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary “and tasks (a) to (p) are listed in support of Task #1.

  2. The table from 20 November 2020 states that 33% of the nominated positions time is spent on this task.

  3. These tasks are consistent with Ms Burnell’s advice in the hearing that the nominee supervises the contract commercial cleaners and tradesman who clean and maintain the guest rooms. It is noted that the nominee purchases some cleaning products and bedding which is consistent with stocking the cleaner’s trolleys and provisioning the guest’s rooms.

  4. The Tribunal accepted that Ms H organises the body corporate work including as Mr Burnell stated looking  after the building and organising trades, maintenance for the lifts, garden, pool, spa and the outside of the building, in other words the building itself and the common areas.

  5. The Tribunal finds task “(o) approving roster lists for the front desk staff” is inconsistent with the evidence given by Ms Burnell who advised  there is a receptionist who presently works 5 days a week from 8.30am to 5.00pm and outside these hours there is a contracted “guest night service”. It is accepted that someone would fill in for the receptionist when she has lunch or breaks but since there is only one receptionist and the nominee assists her when it is busy it is implausible that a roster is required.

  6. Although it is not listed in the Job description, the Tribunal has considered  that Ms Burnell stated the nominee assists the receptionist during the busy times of the day when guests are checking in and out between 10.00am and 2.00 or 3.00pm but since the nominee states that she works during the week from generally 9.00am to 3.00pm it is difficult to see how she can carry out the banking and her other duties in the short time of one to two hours she is not working at reception from it seems 9.00am to 10.00am and from perhaps 2.00pm to 3.00pm. It would also mean that for a significant proportion of her day she is an assistant receptionist rather the claimed Guest Services Manager. Taking into account the anomalies in this advice, the Tribunal can only give it limited weight.

  7. The Tribunal finds that the tasks do not involve “directing and overseeing room service duties”. The Grand Apartments appear to be self-contained serviced apartments and  do not contain a restaurant and guests would have little need for room service involving the supply of food and beverages except for requesting additional provisions such as soap, tissues etc which are generally stored and distributed from reception.

  8. The Tribunal finds the nominated position undertakes the following from Task #1,

    “directing and overseeing housekeeping activities when necessary”.

    Task #2 of the Job description.

  9. Task #2 of the Job description is “greet guests warmly and perform registration procedures”.

  10. The table from 20 November 2020 states that 20% of the nominated positions time is spent on this task.

  11. The additional tasks that are claimed for the nominated position are as follows.

    a)    Check arrival list and organise all requirements such as beds, cots, hire chairs, promotional items etc

    b)    Greeting guests on check-in and perform   registration procedures.

    c)    Print all arrival and departure reports.

  12. Tasks (a) and (c) go to ensuring the cleaners or the nominee herself ensure the rooms are ready with the necessary items and that there is an arrival and departure report on the state  of the guest room which is consistent with her managing the contract cleaning staff. As stated above it is accepted that the nominated position assists with reception duties although the extent of this is unclear.

  13. The Tribunal finds the nominated position undertakes the following from Task #2

    2. Greet guests warmly and perform registration procedures.

    Task #3 of the Job description.

  14. Task #3 of the Job description is ‘Facilitates guest departures providing accurate statements and ensuring guest satisfaction and collecting payments due”.

  15. The table from 20 November 2020 states that 20% of the nominated positions time is spent on this task.

  16. The additional tasks that are claimed for the nominated position are as follows.

    a)Check all departures for any missing items & damage to charge the guest

    b)Charge the guest for missing items

    c)Print service letters and take them to the   rooms

    d)Monitoring staff performance to ensure that guests are happy and that the rooms and common/public areas (i.e. pool and BBQ areas) are well-run.

    e)Assist with departures any guest     compliments/complaints.

  17. The Tribunal finds that tasks (a) to (d) are consistent with checking the guest rooms and common areas that are cleaned by the contract cleaners and noting any items missing or damaged. Again task (e) goes to assisting reception and again the extent of this assistance is unclear.

  18. The Tribunal finds the nominates position undertakes the following tasks for Task #3.

    3. Facilitates guest departures providing accurate statements and ensuring guests satisfaction and collecting payments due.

    Task #4 of the Job Description.

  19. Task #4 of the Job Description is ‘Attend meetings and training as  requested.”

  20. The table from 20 November 2020 states that 5% of the nominated positions time is spent on this task.

  21. The additional task that is claimed for the nominated position is as follows.

    (a)     Maintain knowledge of local laws and relevant business company hygiene, health and safety regulations (i.e. particular following COVID-19 health & safety measures)

  22. It is noted that to have knowledge of local laws; company regulations around hygiene, health and safety and particularly COVID-19 safety and health measures would reasonably be expected of every employee.

  23. The Tribunal also noted the evidence from Ms Burnell in the hearing that with regard to meetings, the nominee does not have any input into the body corporate meetings as those are handled by Ms Burnell and Ms H as that contract is separate to the letting contract. They tend not to have formal meetings regarding the letting side of the business; it is more that the nominee comes down and “fills me in on everything that is going on, or if I need to handle something myself, or if she wants advice or anything like that”.

  24. As such, the Tribunal finds that the nominated position does not attend meetings and the training is what would be expected of every employee rather than specific training directed to a managerial level role.

  25. However, the Tribunal accepts Ms Burnell’s advice that the nominated position undertakes the following task as part of Task #4

    4. Fills me in on everything that is going on, or if I need to handle something myself, or if she wants advice or anything like that”.

    Task #5 of the Job Description.

  26. Task #5 of the Job Description is “Assessing and maintaining customer satisfaction standards.”

  27. The table from 20 November 2020 states that 5% of the nominated positions time is spent on this task.

  28. The additional tasks that are claimed for the nominated position are as follows.

    a)Handle queries from customers on the  businesses polices and services.

    b)Handle any customer complaints including  in online forums.

  29. In the hearing the Tribunal put to Ms Burnell that as the owner and hands-on director of the business that she would set the customer satisfaction standards rather than leaving this important aspect of the business to an employee. Ms Burnell replied that with regard to the customer satisfaction standards, she does set the standards but the nominee is in charge of making sure that they are correct or if she thinks they need updating she will come and tell Ms Burnell and they will reset them. She trusts her opinion when it comes to the rooms or what customers say. She can virtually remember what cushions are in what room, so the applicant trusts the nominee with that.  This is consistent with the nominated position being responsible for the housekeeping through the contract cleaning staff and suggesting to Ms Burnell that guest room presentation such as “what cushions are in what room” would need to be updated.

  30. The Tribunal notes that Ms Burnell advised that the nominated position handles complaints that come through although they do not get too many of them and she responds to complaints directed through the after-hours service by email. There was scant evidence of the nature of these complaints and that the nominee deals with them so the Tribunal places limited weight on this task.

  31. The Tribunals finds that the nominated position as Ms Burnell advised;

    #5 suggests updates or improvements to the standards of the guest rooms such that    they reset the standards of the guest rooms.

    Task #6 of the Job Description.

  32. Task #6 of the job description is “Produce and analyses operational   reports”.

  33. The table from 20 November 2020 states that 1% of the nominated positions time is spent on this task.

  34. The additional tasks that are claimed for the nominated position are as follows.

    a)    Report on any maintenance requests and  relevant estimation for services

    b)    Assist in preparation of policy and procedures particular for front-line staff regarding government mandates for COVID-19 health and safety guidelines, as and when required

    c)    Ensure that any items requiring replacement in the rooms such as cutlery, crockery, irons etc are actioned and organise to charge the owner/report on same

  35. In the hearing the Tribunal put to Ms Burnell that that producing the operational reports appeared to be done automatically by the software system, REI Master and analysing those reports would be a responsible task undertaken by the director Ms Burnell given they deal with expenses, income and factors that go to the heart of whether the business is profitable or not. Ms Burnell advised that the operation reports are maintenance reports on the guest rooms and the nominee passes these to Ms H or the maintenance man or organises a tradesman as required.

  36. The Tribunal again considers these tasks are consistent with the nominated position being responsible for the housekeeping through the contract cleaning staff and reporting any items that need maintenance or replacement.

  37. The Tribunal finds that the nominated position undertakes

    #6 Is in charge of the contract cleaning staff and directs the maintenance staff to maintenance requests and estimate for costs.

    #6 may assist with policy for COVID-19 guidelines but scant evidence has been provided to provide samples of these guidelines or that the nominated position assisted in their production.

    Task #7 of the Job Description.

  38. Task #7 of the Job description is “assist with recruiting, selection and training of front desk reservations and night audit staff”.

  39. The table from 20 November 2020 states that 0% of the nominated positions time is spent on this task as it is not required at present.

  40. The Breakdown of tasks claims the nominated position undertakes the following as part of this task.

    a)Assisting owner with recruiting, interviewing and selection of staff where necessary/required (particularly for    receptionists/front-desk staff)

    b)Training reception/front-desk team members and monitor performance.

    c)Training staff on answering guest queries about businesses polices and services

  41. The Tribunal notes that Ms Burnell is a highly professional person and this is informed by  the support letter from the accountant which attests to her professionalism.

  42. There was scant advice in the hearing that the  nominee assisted with  “recruiting and selection of front desk staff “ and the Tribunal considers that this important  “guest facing” role would be undertaken by Ms Burnell who in her own words is part of the “two person” management team. It is noted that Ms Burnell has trained the receptionist with the assistance of the nominee and she takes a hands-on approach to the business.

  43. The night audit staff are the “off-site guest night service” that Ms Burnell contracted to manage the after hours check-ins and suggesting that Ms Burnell would have left the recruitment or selection of this  important aspect of her business to the nominee is not consistent with the advice at hearing. It is also noted that the other person comprising the “two- person management “team is Ms H who lives on site in apartment #203 and is available for any matters that the guest night service is unable to resolve. The Tribunal finds it implausible that the nominated position would “assist with recruiting, selection and training of the night audit staff” when there are two other senior managers in Ms H and Ms Burnell, the latter being the hands-on owner of the business who would make important decisions regarding the services provided to the business.

  44. The Tribunal acknowledges as stated in the hearing that the nominated position undertakes the following task

    #7 does assist in training the receptionist.

    Task #8 of the Job Description.

  45. Task #8 of the Job Description is” Overseeing financial/accounting/purchasing activities”.

100.   The table from 20 November 2020 states that 5% of the nominated positions time is spent on this task.

101.   The breakdown of tasks includes the following for this task.

a)    Raising request regarding purchasing of     needed stock etc, and attending to purchasing of same.

b)    Banking

102.   It is noted that Ms Burnell advised in the hearing that “I do the business side of things “ and only she has access to the “back-end financials” and that the applicant employs an accountant who prepares the BAS statements, tax returns and financial statements. The Tribunal finds that the nominated position is not “overseeing financial/ accounting activities”.  It finds that Ms Burnell or the accountant is overseeing financial /accounting activities.

103.   The Tribunal finds that the nominated position does undertake

#8.  purchasing of cleaning products and provisions for the guest rooms and

#8. does the banking although most guests settle with EFTPOS and credit cards.

Task #9 of the job Description

104.   Task #9 is “assist and/or supervise the opening and closing of the property”.

105.   The table from 20 November 2020 states that 1% of the nominated positions time is spent on this task.

106.   The breakdown of tasks includes the following for this task.

a)    Ensure the front desk area/foyer is opened and/or closed properly (i.e. ensuring no private or confidential information is left on the desk when closing)

107.   It is noted that the receptionist’s hours are 8.30 am to 5.00pm and while the nominee’s advised her hours vary she generally works from 9.00am to 3.00pm on weekdays and it is implausible that she would be present when the receptionist comes on duty at 8.30am to open reception or that she would be present at 5.00pm when the receptionist closes reception and hands the task over to the contracted guest night service. When this was put to Ms Burnell in the hearing, she advised that the nominee had to make sure that the building was presentable including the spa and other common areas. This is consistent with the nominated position being responsible for the housekeeping through the contract cleaning staff and the maintenance staff.

108.   The Tribunal finds this task is not undertaken by the nominated position since her work day commences after the receptionist opens the front desk at 8.30 am and concludes before the receptionist closes the front desk at 5.00pm and Ms Burnell advised that the nominee does this in the sense of ensuring the common areas are clean and presentable. This is consistent with the nominated position organising the contract cleaning staff and maintenance staff.

Task #10 of the Job Description.

109.   Task #10 is “Implementing and maintaining  compliance with occupational health and safety regulations”.

110.   The table from 20 November 2020 states that 5% of the nominated positions time is spent on this task.

111.   The breakdown of tasks includes the following for this task.

a) Ensuring that there are no obstructions on the floors in public spaces

b) Implement and monitor health and safety guidelines (generally) and in response to COVID-19 requirements mandated by the government.

c)  Ensuring that the business, residents, guests and other visitors to the building are compliant with COVID-19 safety measures, including ensuring appropriate signage is maintained.

112.   The Tribunal finds the nominated position undertakes this task;

10. “Implementing and maintaining compliance   with occupational health and safety regulations”.

Task #11 of the Job Description

113.   Task #11 is “May assist in training frontline staff as and when required.”

114.   The table from 20 November 2020 states that 0% of the nominated positions time is spent on this task since it is only “When required”.

115.   The breakdown of tasks includes the following in this task.

a)    Training frontline staff (i.e. reception) in regard to their duties

b)    Training front-line staff in regard to updated measures (i.e. ensuring guests fill-in & sign the appropriate COVID-19 check in information form/s.

116.   The Tribunal finds that the nominated position

11.  provides some training to the receptionist.

11.  Training receptionist to ensure guests fill in and sign the Covid_19 check in information.

Task #12 of the Job Description

117.   Task #12 of the Job Description is “Assist in marketing activities to enhance the customer’s experience.”

118.   The table from 20 November 2020 states that 5% of the nominated positions time is spent on this task.

119.   The breakdown of tasks includes the following in this task.

a)    Respond to positive and negative feedback in online customer reviews.

b)    Assist with and respond to customer queries about local travel and/or tourist destinations and restaurants etc.

120.   The Tribunal has considered whether the nominated position undertakes marketing activities and is mindful that Ms Burnell has an advertising guru who is very “switched on” and he is responsible for the marketing activities which are going very well at present. There is scant evidence that the nominated position responds to negative or positive feedback in online customer reviews. The Tribunal considers that responding to local customer queries about local travel destinations is part of the assistance the nominated position provides to the receptionist or provides to guests when she is assisting at reception. It is also noted that all this information is on the Grand Apartments website under headings such as “restaurants’ etc and is usually contained in a Compendium of Information provided in the guest rooms.

121.   As such, the Tribunal finds the nominated position does not assist in marketing activities since there is a marketing guru retained by the business; there is scant evidence of responding to feedback in online reviews and customer information about local destinations is on the website and contained in Compendium of Information in the guests room and would be part of the guest services provided when the nominee is assisting at reception.

Task #13 of the Job Description.

122.   Task #13 of the job description is “Perform other duties as and when  required”.

123.   The breakdown of tasks includes the following.

a)Assisting with customer luggage if necessary or directing customers re (sic) to  appropriate baggage carriers

b)Attend any fire alarm and ensure that it runs smoothly.

c)Taking calls when required (i.e. if receptionist/s are sick).

124.   With regard to task (b) it was noted that the applicant could not remember the fire alarm “Call out” company when asked in the hearing and this suggests that it is Ms H, one of the “two person management” or the owner and director of the busines  Ms Burnell who are the responsible fire wardens but little weight is placed on this matter.

125.   The Tribunal has considered these tasks and finds that the nominated position undertakes the following;

13. a) Assistance with customer luggage if necessary or directing customers re (sic) to appropriate baggage carriers.
13. b) Attend any fire alarms and ensure that it runs smoothly.
13. c) Taking calls when required e.g. if receptionist is sick. 

Assessment of the Job Description.

126.   The Tribunal will now assess whether all the tasks of the job description are undertaken or undertaken as represented.

127.   The Job description is shown below with those tasks crossed out that the Tribunal has found are not undertaken by the nominated position.

Summary

The general purpose of this position is to ensure all guest house business operations, including customer service, are up to the standard of the operational specifications.

Guest House/Services managers organize and control the operations of accommodation and related services in a variety of accommodation establishments including but not limited to hotels, motels, and holiday apartments, to provide guest accommodation, meals and other services including the supervision of frontline staff.

Duties and Responsibilities include but are not limited to:

•   Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary;

•    Greet guest warmly and perform registration procedures;

•    Facilitates guest departures providing accurate statements and ensuring guest satisfaction   and collecting payments due;

•   Attend meetings and training as requested;

•   Assessing and maintaining customer satisfaction standards;

•   Produce and analyse operational reports;

•   Assist with recruiting, selection and training of front desk, reservations and night audit staff;

•   Overseeing financial/accounting/purchasing activities;

•   Assist and/or supervise the opening and closing of the property;

•   Implementing and maintaining compliance with occupational health and safety regulations;

•   May assist in training other frontline staff as and when required.

•   Assist with marketing activities to enhance the customer's experience;

•   Perform other duties as and when required.

128.   The Tribunal will now compare the tasks that are actually undertaken by the nominated position and the tasks of a Hotel Service Manager ANZSCO 431411. The details are taken from the Australian Bureau of Statistics Website.

UNIT GROUP 4314 HOTEL SERVICE MANAGERS

HOTEL SERVICE MANAGERS supervise and coordinate the activities of hotel service workers.

Tasks Include:

odetermining work requirements and allocating duties to Commercial Housekeepers, Luggage Porters and Doorpersons

oconferring with managers to coordinate activities with other organisational units

omaintaining attendance records and rosters

oexplaining and enforcing safety regulations

ooverseeing the work of the unit and suggesting improvements and changes

oconferring with workers to resolve grievances

omay perform front office and hotel reception duties


Occupation:

431411 Hotel Service Manager

Alternative Title:
Hotel Service Supervisor


Supervises and coordinates the activities of hotel service workers. Specialisations:

Front Office Manager (Hotel)
Head Housekeeper
Head Porter (Hotel)
Hotel Concierge
Hotel Office Manager

Comparing the nominated positions tasks to an ANZSCO Hotel Service Manager/ Head Housekeeper.

129.   The Tribunal is mindful of Judge Vasta’s[1] comments in Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 758 where his Honour stated,

[1] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 758.

“The Tribunal, very helpfully, constructed a table. On the first column, the Tribunal listed the ANZSCO retail manager tasks from 1 to 9, and then listed the Tribunal’s finding on the tasks of the nominated position that correspond with the ANZSCO and then in the last column gave a weighting score…It was quite an innovative approach but there needed to be something more to it that took into account what the position actually was and where it was going to occur.”

130.   The Tribunal will construct a table and then take into account other factors regarding the position to give expression to the qualitative approach endorsed by Judge Vasta above.

131.   Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30] stated as below. 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) and r.5.19(3)(i).

“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… “

Actual Tasks undertaken by the Nominated Position

HOTEL SERVICE MANAGERS supervise and coordinate the activities of hotel service workers.

 Tasks found to be undertaken by the nominated position.

1) determining work requirements and allocating duties to Commercial Housekeepers, Luggage Porters and Doorpersons

  1. directing and overseeing room service duties and assisting in housekeeping activities when necessary”.

8. Overseeing purchasing activities.

6. Is in charge of the contract cleaning staff and directs the maintenance staff to maintenance requests and estimate for costs.

13. a) Assistance with customer luggage if necessary or directing customers re (sic) to appropriate baggage carriers.

2) conferring with managers to coordinate activities with other organisational units

4. The nominated position confers with Ms Burnell as she advised in the hearing. “Fills me in on everything that is going on, or if I need to handle something myself, or if she wants advice or anything like that”.

3) maintaining attendance records and rosters

1.       p) Approve roster list/times for cleaners having regard to guest check-in and check-out times.

4)    explaining and enforcing safety regulations

10. Implementing and maintaining compliance with occupational health and safety regulations;

11.  Training receptionist to ensure guests fill in and sign the Covid_19 check in information.

6.  may assist with policy for COVID-19

5)    overseeing the work of the unit and suggesting improvements and changes

     5. Ms Burnell advised that the nominee, suggests updates or improvements to the standards of the guest rooms such that   they reset the standards of the guest rooms.

6)    conferring with workers to resolve grievances

7)    may perform front office and hotel reception duties

2.    “greet guests warmly and perform registration procedures”.

3.        Facilitates guest departures providing accurate statements and ensuring guest satisfaction   and collecting payments due;

7. Assist with training of front desk, reservations staff;
8. Does the banking.
11. May assist in training other frontline staff as and when required.

13. b) Attend any fire alarms and ensure that it runs smoothly.
13. c) Taking calls when required e.g. if receptionist is sick. 

132.   While the Tribunal notes that the ANZSCO is not a checklist it finds the actual tasks undertaken by the nominated position, correspond very closely with the tasks of the ANZSCO 431411 Hotel Service Manager and one of the specialisations is Head Housekeeper which the Tribunal finds, from the tasks actually undertaken by the nominated position and the information  provided, is the role of the nominated occupation.

Qualitative assessment against the ANZSCO task

133.   The Tribunal must consider whether the nominated position “organises and controls the operations of the establishment” with regard to the provision of accommodation and hospitality services from the Grand Apartments.

134.   It is noted that at the conclusion of the hearing, it was stated that the ANZSCO does not cover everything the nominee does, and she does so much more. The applicant has submitted an expanded list of tasks undertaken by the nominee and these have been carefully considered and a finding made on those which are actually undertaken and that has been assessed against the ANZSCO and found to correspond with the tasks of Head Housekeeper ANZSCO 431411. It is acknowledged that Ms Burnell needs the services of the nominee, but the Tribunal is bound to consider whether ‘the position is really what it purports to be” as stated by Judge Smith. The Tribunal acknowledges that the NAZSCO tasks for this position are brief nonetheless it has undertaken a qualitative assessment of them brief as they are.

135.   It is noted that Ms Burnell is the director and owner of the business and she is very much a professional hands-on person who attends the business every day including Saturday although she is trying to take some time off at present. She is part of the “two person management position” and employs “ a person to do the body corporate side of things” and she does the business side of things but needs other staff to do the rest of it. It is noted that she engaged the advertising guru who handles their marketing; she is knowledgeable about the software program that manages lettings REI Master; she sets the customer service standards for the business; she engaged the accountants; all employees answer to her and  only she has access to the backend financials for the business such as analysing reports.

136.   It is noted from the analysis of the actual tasks of the nominated position taken from the amended Job Description that the nominated position largely organises the contract cleaning staff and the maintenance staff to clean and repair the guest rooms and common areas although Ms H is largely responsible for the upkeep of the common areas as part of her Body Corporate responsibilities. It is noted that the position assists with reception and some training.

137.   The Tribunal finds that it is Ms Burnell the director and owner who organises and controls the operations of the establishment, the Grand Apartments with regard to the accommodation and hospitality services. It finds, based on a close analysis of the actual tasks of the nominated position, that it is an ANZSCO 431411 Head Housekeeper role.

138.   As such, the Tribunal finds there is not a genuine need for the nominator to employ the person (the nominee), as a paid employee, to work in the position of Accommodation and Hospitality Manager ANZSCO 141999  - Guest House Services Manager under the nominator’s direct control because the position is filled by the hands on, professional director and owner of the business who organises and controls the operations of the establishment and further that the nominee’s tasks are not those of  the nominated occupation but correspond closely with those of a Head Housekeeper ANZSCO 431411.

139. Accordingly, the requirement in r.5.19(3)(i) is not met.

140. Accordingly, r.5.19(3) is not met.

141. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

142.   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.

Temporary Residence Transition nomination

(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii)     identifies an occupation, in relation to the position, that:

(A)is listed in ANZSCO; and

(B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

(b)the nominator:

(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii)      is actively and lawfully operating a business in Australia; and

(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

(c)either:

(i)       both of the following apply:

(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

(I)held one or more Subclass 457 visas for a total period of at least 2 years; and

(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

(B)the employment in the position has been full-time, and undertaken in Australia; or

(ii)      all of the following apply:

(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

(B)the nominator nominated the occupation;

(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d)for a person to whom subparagraph (c)(i) applies:

(i)       the person will be employed on a full-time basis in the position for at least 2 years; and

(ii)      the terms and conditions of the person’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)       the nominator:

(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

(ii)      it is reasonable to disregard subparagraph (i); and

Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

(g)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

(h)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

(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Statutory Construction

  • Procedural Fairness

  • Jurisdiction

  • Standing

  • Remedies

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Cargo First Pty Ltd v MIBP [2015] FCCA 2091