Melbourne Tractors Pty Ltd (Migration)

Melbourne Tractors Pty Ltd (Migration) [2019] AATA 1574 (25 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Melbourne Tractors Pty Ltd
CASE NUMBER:  1610974
HOME AFFAIRS REFERENCE(S):           BCC2015/3946774
MEMBER:Alison Mercer
DATE:25 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 25 January 2019 at 5:01pm

CATCHWORDS
MIGRATION – nomination – Supply and Distribution Manager – position regarded as senior management role duties of nominated position correspond with those in ANZSCO – significant evidence provided – nominated position created to meet demand – position helped business grow and improve financial performance – family business – overlap in responsibilities – lower level duties performed – majority of tasks high level – credible and consistent evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 245, 359
Migration Regulations 1994 (Cth), rr 1.13, 2.57, 2.72, 2.73, Schedule 2, cl 457.223
Fair Work Act 2009 (Cth)

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 Immigration and Border Protection on 30 June 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant, Melbourne Tractors Pty Ltd, applied for approval on 19 December 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because the delegate was not satisfied that the duties of the nominated position corresponded with those in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary occupational description for a Supply and Distribution Manager (133611). The delegate considered that the duties of the nominated position were more similar to those in another ANZSCO occupational Unit Group, being Unit Group 5911 Purchasing and Supply Logistics Clerks, which contained lower level occupations which were not on the relevant list for the purposes of approval pursuant to r.2.72.
The Tribunal received a review application on 20 July 2016. It was signed on behalf of the applicant by Mr Stephen Astle, Branch Manager, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Astle appointed a registered migration agent, Mr Paul Dizon, as the applicant’s representative and authorised recipient for correspondence.
On 30 August 2018, the Tribunal wrote to Mr Astle, via the agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current information addressing all of the criteria in r.2.72. Detailed examples of the kinds of information that would assist the Tribunal were provided, together with a copy of r.2.72 itself. The Tribunal noted that it had to be satisfied that all criteria in r.2.72 were met, not just the criterion in dispute in the Departmental decision. The Tribunal requested that the information be provided by 13 September 2018.
On 13 September 2018, the Tribunal received the following documents via email from the applicant’s agent:
·ASIC current and historical extract for the applicant;
·Department notification of approval of the applicant as a standard business sponsor, issued 8 June 2018, valid until 8 June 2023;
·applicant’s financial statements for the 2015/16 and 2016/17 financial years;
·organisational chart for the applicant (it is noted that the title of the nominated position in the chart is ‘Stock Controller,’ and that the nominee sometimes signs off this way but it is asserted that the position is very high within the organisation and sits alongside the General Managers. It is further asserted that the tasks and duties also distinguished it as a higher level position);
·employment contract between the applicant and nominee, dated 18 December 2015, for fulltime employment as a Logistics and Distribution Coordinator on a guaranteed age of $53,900 plus superannuation;
·copy of Storage Services and Wholesale Award 2010 indicating that the salary for a Storeworker Grade 4 is $43,778.80 per year. It is stated by the agent that the nominee is paid above this minimum award rate, and that an equivalent Australian employee in the same positon would be paid the same amount;
·evidence that the applicant has undertaken at least 5 years of secondary and/or higher education for which the medium of instruction was English, as evidence of his English proficiency, including evidence of his study in Australia and in the Philippines; and
·various documents related to the duties, level and importance of the nominated position within the applicant’s business, including position description, letter of support from Mr Matthew Thorne, the applicant’s General Manager, dated 13 September 2018, agent’s submissions on the alignment between the duties of the nominated position with the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary occupational description for a Supply and Distribution Manager (ANZSCO code 133611), with supporting evidence such as email correspondence between the nominee and clients of the applicant (variously dated), Inventory Control Lists and journals, and orders signed by the nominee. The applicant’s agent submitted that the delegate had focussed entirely on the ‘operational’ tasks and duties to conclude that the nominated position was closely aligned to Unit Group 5911 Purchasing and Supply Logistics Clerk, but that this was incorrect: as shown by the supplied evidence, the tasks and duties of the occupation were only incidentally operational and required duties at a management level, aligning with a Supply and Distribution Manager (133611).
It was further submitted by the agent that, although the occupation of Supply and Distribution Manager was subject to caveats 3, 11 and 19 as of 18 March 2018, these did not exclude the nominated position in this case because the position was not an intra-corporate transfer (note 3), it was not based in a frontline retail setting and did not predominantly involve direct client transactional interaction on a regular basis (note 11), and the applicant’s annual turnover exceeded $1,000,000 (note 19).
On 31 October 2018, the applicant wrote to Mr Astle via his agent to invite him to attend a hearing on behalf of the applicant on 12 December 2018. In addition, the Tribunal noted that the nominated occupation of Supply and Distribution Manager was now subject to exclusionary caveats in IMMI 17/060, including note 3(a), which excluded positions with salaries less than $65,000 from being approved under r.2.72(10)(aa). The Tribunal further noted that as the nominated position was $53,900, it appeared to be excluded by note 3(a). The Tribunal stated that it was of the view that note 3(b) did not apply in this case, as the nominated positon was not a transferred position, but nevertheless, the applicant was still subject to notes 3(a), 11 and 19. The Tribunal further noted provision of information addressing this issue as soon as possible might result in a hearing being unnecessary if the Tribunal was able to make a favourable decision based on that information alone.
On 30 November, 5 and 6 December 2018, the applicant’s agent provided the following:
·    submission from the agent;
·    Job Outlook information on Supply, Distribution and Procurement Managers;
·    Payscale information on Average Distribution Manager Salary in Melbourne ($94,248) (accessed 18 November 2018);
·    extract from Storage Services and Wholesale Award 2010 ;
·    advertisement for fulltime position as a Supply Chain Manager, suburban Melbourne, with salary of $80,000 to $120,000 per year (undated);
·    ABS information on Australian average weekly earnings, May 2018; and
·    employment contract between the applicant and the nominee, dated 29 November 2018, Schedule 1 of which states that the nominee’s gross pay is $1,251 per week (or $65,052 gross per year) and Schedule 2 of which provides a job description.
In summary, the agent made the following submissions:
·the nominee had received a promotion, with commensurate salary increase to $65,052 per year. This was calculated to be the market salary rate for an Australian citizen or permanent resident employee in the position, using the prescribed methodology. This salary also exceeded the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900 (as per IMMI 13/028);
·the relevant instrument in force at the time was IMMI 09/113, which prescribed the methodology for determining what terms and conditions would apply to an Australian citizen or permanent resident performing equivalent work in the same work place at the same location, if there was no equivalent Australian employee already in the nominated position;
·IMMI 13/028 firstly required assessment of whether there was an industrial award or instrument (either State or Commonwealth) that applied to the nominated occupation, and if it were found that there was not, then the market rate salary was to be determined with regard to other relevant information, including local knowledge, evidence from employer groups and unions, ABS earnings surveys, Job Outlook, remuneration surveys and job vacancy advertisements;
·the Storage Services and Wholesale Award 2010 classified positions such as the nominated position as Storeworker Grade 4. The minimum weekly rate for that classification under the Award was $841.90 per week (or $43,778.80 per year). The nominee’s current salary exceeded this Award minimum rate;
·local knowledge and evidence from employer associations and unions was unavailable;
·the ABS average earnings (across all occupations) in the Transport, Postal and Warehousing industry were $1,600 per week (or $83,200 per year). While the nominee’s current salary was below this, the ABS figures were drawn from averaging salaries across all occupations at all levels across the industry. Moreover, the nominee’s earnings were affected by his experience and range of duties. Accordingly, the ABS average earnings should not be taken to be determinative of the nominee’s salary;
·the Job Outlook report provided indicated that the average weekly salary for Supply, Distribution and Procurement Managers under ANZSCO Unit Group 1336 was $1,650. The same report also contained the following important notes: ‘Earnings tend to be lower when starting out and higher as experience grows… Earnings can vary greatly depending on the skills and experience of the worker and the demands of the role… Hours: full-time workers spend around 43.3 hours per week at work (compared to the all jobs average of 40.0 hours);’
·the Payscale report showed an average salary of $94,428 for Distribution Managers in Melbourne. While this average was high, this amount was averaged across only 9 respondents, and in any case, the Payscale information showed a range from $48,270 to $131,715, which was explained as being linked to years of experience, and which did not include only the base salary rate: ‘Pay by Experience for a Distribution Manager has a positive trend. An entry-level Distribution Manager with less than 5 years of experience can expect to earn an average total compensation of AU $55,000… Average total compensation includes tips, bonus and overtime pay. A Distribution Manager with mid-career experience which includes employees with 5 to 10 years of experience can expect to earn an average total compensation of AUD $67,000…;’
·the only locatable job vacancy advertisement for an equivalent or similar occupation, ‘Supply Chain Manager,’ showed a salary range of $80,000 to $120,000; however, this position differed from the nominated position in terms of experience (at least 5 years) and additional duties (eg to develop new products working with sales and marketing, and managing OH & S);
·the collected information showed a salary range between $43,778.80 and $131,715 per year for the position of Supply and Distribution Manager. The surrounding contextual information showed that the salary of a Supply and Distribution Manager was tied strongly to the experience and duties of the specific position;
·the minimum rate set by the relevant Award did not itself determine the market rate, as it would not apply to an Australian employee performing equivalent work in the same workplace in the same location, and it did not apply to the nominee. This was due to the mid-range level of experience that the position required and that the nominee possessed;
·the nominee had been in the position since July 2013, and as a result, had an amount of experience in the occupation. The nominee’s tasks and duties aligned with those of the ANZSCO occupation, as previously submitted, and did not significantly include other duties outside or beyond that occupation. It was submitted that this level of experience, and duties, placed the nominated position (and the nominee) at a mid-level salary point, above the TSMIT, within the market salary rate, and in satisfaction of the note to the caveat in the applicable instrument;
·the salary was also appropriate for the position within a company the size of the applicant While the nominee carried out, and would carry out, the duties of the nominated occupation, and such as position was required by the applicant to maintain and improve its daily operations, the salary was proportionate to that payable within a company of the size and complexity of the applicant. The nominated position reported to the director, and this direct reporting line demonstrated the seniority of the position;
·given the balance of factors – the experience-related rate of earnings for this occupation, the lower-than-average contracted hours of the nominated position (38 as opposed to 43.3) and the salary amount of the nominated position – it was submitted that the salary of $65,052 per year represented the market salary rate as applicable to the nominee, and was the same salary that would be paid to an Australian employee of the same level of experience, performing equivalent work in the same location;
·furthermore, the terms and conditions of the nominee’s contract were no less favourable than those that would be provided to an Australian employee of the same level of experience, performing equivalent work in the same location;
·the nominee’s salary was above the TSMIT, represented the market rate and the nominee’s overall terms and conditions of employment were no less favourable than those that would be provided to an Australian employee of the same level of experience, performing equivalent work in the same location, and therefore the caveat in note 3(a) was met, as was r.2.72(10)(aa). The Tribunal was asked to remit the matter back to the Department on the basis that the applicant satisfied r.2.72.
On behalf of the applicant, Mr Stephen Astle and Mr Matthew Thorne appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Ericson Fernandez, and oral submissions from the applicant’s agent.
The Tribunal received post-hearing submissions from the applicant’s agent on 22 January 2019 plus supporting documents. In summary, the applicant made the following submissions:
·the Presiding Member identified the following issues at the hearing as being remaining concerns: the seniority of the nominated position as a managerial role, how the position fits into the applicant’s structure as a company (given that similar duties were carried out by other positions at other levels), and the managerial nature of the position, and that the majority of tasks and duties actually performed by the position were from ANZSCO Unit Group 1336 or Unit Group 5911;
·in their verbal evidence, Mr Astle and Mr Thorne described now the position (variously titled Stock Controller (on the organisation chart) and Logistics and Distribution Coordinator (contractually)) currently occupied by the nominee came into being;
·as explained at the hearing, in its tractor and machinery supply business the applicant supplies machinery to its customers. The applicant advertises itself on its website as supplying new and used construction and earthmoving machinery, parts and attachments, and providing a maintenance service. As explained at the hearing, Parts involves the provision of spare parts, and Attachments involves the provision of optional customisable attachments for vehicles;
·the applicant has had an advantage over its competitors in supplying a variety of attachments immediately available to customers, due to a strong network of cost-effective attachments suppliers in China and South Korea;
·the director of the applicant, Mr Ken Bennett, has traditionally had a personal interest in expanding the applicant’s business to include attachments sales. The sale of attachments, due to its complexity, is not easily handled in an ad hoc way. The duties of the nominated position, in control of the current Attachments department, were initially split across the existing Sales team and other staff. This arrangement was ad hoc, and proved very inefficient. The growing Attachments department required a dedicated supply and distribution manager to reform and manage its processes, improving efficiency and ultimately leading to greater profitability;
·the applicant’s most senior management identified the nominee’s skill set as potentially suitable for this position. Having undertaken appropriate labour market testing, no other suitable candidate was found. The nominee subsequently filled the position and ably performed its tasks and duties. The majority of these tasks and duties, on a daily basis, are of a high level, managerial nature, aligning with the tasks of a Supply and Distribution Manager consistent with ANZSCO occupation 133611;
·the nominee’s appointment to the position resulted in an increase in the efficiency and throughput of the Attachments department as part of the applicant’s business;
·in previous submissions, the concerns about whether it was a genuine position had been addressed; that is, whether the nominee was actually carrying out the tasks of a Supply and Distribution Manager consistent with ANZSCO occupation 133611;
·the financial statements for the applicant for the financial years 2015/16 to 2017/18 showed a profitable and expanding company. As submitted in oral evidence from the witnesses at the hearing, the applicant’s Campbellfield headquarters premises were expanding into a new location, also in Campbellfield: Mr Steven Kaklamanis, the Chief Financial Officer for the applicant (who did not attend the hearing), advised that this will include a dedicated showroom for the sale of attachments;
·the CFO’s statement showed that there had been a 6.7%, 5.3% and 18.8% growth in overall sales over the last 3 financial years. He also advised that this growth in sales and profit, including 2017 to 2018, was attributable to a rise in vehicle and attachment sales;
·as explained at the hearing, attachments were customisable parts of the vehicles, sold as an option attached to the vehicles that customers buy from the applicant, and also sold as standalone products. The nominated position is the Supply and Distribution Coordinator for this position;
·while sales reports were not available, the applicant’s increase in purchase levels of attachments stock from suppliers is a demand indicator of the applicant’s customers for attachment products, and of the volume of work that the nominated position performs on a daily basis;
·the CFO’s statement showed that there was an increase in purchases from suppliers over the 2014 to 2018 financial year period of $57,683,213 in the 2014 financial year to $77,024,217 – an increase of 74.89% over the period;
·the applicant had further reports demonstrating the rise in demand for attachments over time. In transactional terms, the applicant’s demand for attachments from its suppliers has risen from 189 transactions in the 2014 calendar year, to 616 transactions in the 2018 calendar year – an increase of 30.68%. In the context of high sales growth company such as the applicant, it followed that the demand from the applicant’s customers had driven the purchase of attachments from suppliers for its inventory;
·this increase in demand and of volume of work over time, supported claims made by the witnesses at the hearing, and the director in his statement about Attachments’ rising levels of sales activity, and the volume, scope and intensity of the work done in the nominated position;
·the effect of the increase in demand on the nominated position’s duties is at a management level. It followed that the large and growing Attachments order volume and accompanying sales, required the nominated position to undertake duties of a managerial level, in order to coordinate, sustain and expand the Attachments division;
·as shown in the organisation chart, the nominated position sat directly below the position of director (Mr Kenneth Bennett), reflecting the reporting line directly to the director. The nominated position did not yet have formal reporting lines reporting to it; however, as explained below, this situation was certain to change if the nomination was approved. The positon did delegate lower level tasks to positions below it in the hierarchy and directed people in these positions, who reported to the position;
·it was strongly submitted that the nominated position was a managerial one, with the majority of tasks drawing from Unit Group 1336. As submitted at the hearing, the effect of the position’s creation spoke for itself – the nominee in the position had transformed the disorganised, lacklustre division of Attachments from a low-performing area, to an integral and profitable part of the business. It was submitted that it was beyond the role or capabilities of a lower level Clerk under 5911 to effect such a transformation;
·the Member observed at the hearing that there was a great deal of ‘cross-over’ between the tasks of Unit Groups 136 and 5911. Evidence at the hearing, and in the director’s statement spoke of the inherently participatory and cooperative of the applicant as a functioning company. It was submitted that this should not go against the finding that the position is a managerial one with tasks and duties in alignment with Unit Group 1336;
·the following evidence of the managerial nature of the position, and that the tasks of the position were geared strongly towards those of Unit Group 1336 as opposed to Unit Group 5911: (1) the financial authority of the position, (2) the position’s performance of tasks specific to Unit Group 1336, and (3) the position’s management and direction of other staff members;
·in relation to the position’s financial authority, a prominent characteristic of the position was the high level financial authority that the nominee in the position had to expend and authorise expenditure on behalf of the applicant;
·the nominee in the position shows a wide-ranging ability to sign off contracts, unilaterally, directly with suppliers on behalf of the applicant, and sign off invoices to go to the company’s Accounts for expenditure (the applicant instructed that a person with sufficient authority signing an invoice was the procedure for authorising expenditure for these invoices within the applicant). The position also entered into lines of credit on behalf of the applicant with no need for further authorisation. The director had personally confirmed the nominee’s level of authority of the authority in the position;
·the amounts of the expenditures made under the position’s financial authority vastly exceeded those expected of a lower-level Clerk position – the position had authorised expenditure in the tens and hundreds of thousands of dollars;
·the evidence as a whole strongly showed that the nature and tasks of the position as actually performed were those of Unit Group 1336;
·the Tribunal’s attention was drawn back to the original alignment of tasks and duties as submitted. This showed examples of the position’s performance of the following occupation specific tasks under Unit Group 1336, which formed a majority of tasks and duties under the Unit Group, as part of the ongoing reformation and management of the Attachments division;

ANZSCO Task/Duty/Duties

Evidence – File Name

·     determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans

·     preparing and implementing plans to maintain required stock levels at minimum cost

Signed statement: Melbourne Tractors Statement on Eric.Fernandez.pdf

Screenshots: Inventory List and Inventory Master List.pdf

·     negotiating contracts with suppliers to meet quality, cos and delivery requirements

·     provision of products and services to meet customers or client requirements

Emails:

FERNANDEZ Ericson_negotiation with salespeople evidence.pdf

FERNANDEZ Ericson_negotiation with suppliers evidence

FERNANDEZ internal emails re: customer requirements.pdf

·     overseeing the recording of purchase, storage and distribution transactions

·     operating recording systems to track all movements of supplies and finished goods, and ensuring the reordering, and restocking at optimal times

·     provision of products and services to meet customer or client requirements

Journal Entries:

MELBTRACTORS_InventoryControl1.pdf [example of Machine Control inventory journal with initials EF for Ericson Fernandez]

MELBTRACTORS_JournalEntries.pdf [example of Accounts Journal with initials EF for Ericson Fernandez]

Signed Order:

FERNANDEZ Ericson_signed order as evidence.pdf

·     liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation

Emails:

MELBTRACTORS_InstructionstoMechanics.pdf

·at hearing, the Member remarked on the ‘liaison’ between the nominee and other, lower-level members of staff, and it was submitted that the evidence as already provided had already shown that this liaison included ‘liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation’ per Unit Group 1336;
·it was submitted that evidence of the nominee’s direction of lower-level staff members in other groups to perform tasks belonging Unit Group 5911 – this delegation allowed the nominee in the position to perform the higher-level management tasks so important to increasing Attachments’ functioning and profitability;
·as already submitted at the hearing, and as the director stated, this direction and monitoring of subordinate staff was set formalise after the nominee’s migration status was resolved and the nominee was allowed to continue in the position – upon which the applicant would install a dedicated team of staff answering to the nominated position; and
·while it was understandable that the Member expressed concerns that the nominated position might not have been warranted to be formed to manage a division of the applicant, and that the position might not be managerial or not performing a majority of tasks in the Unit Group;
·as requested, the applicant had supplied the best available evidence to show the scale and importance of Attachments as part of the applicant as a company. Evidence had also been submitted to show the managerial nature of the position and the position’s performance of the tasks of Unit Group 1336;
·it was strongly submitted that from the evidence submitted, the position was genuine and that it carried it out a majority of the tasks and duties under Unit Group 1336. It was strongly submitted that the applicant’s nomination satisfies all of r.2.72 and that the matter should be remitted on the basis that r.2.72(10)(aa) was met.

The supporting documents provided included the following:
·the applicant’s financial statements for 2015/16, 2016/17 and 2017/18;
·letter from Mr Kenneth Bennett, director of the applicant, dated 16 January 2019;
·emails, variously dated, sent and received by the nominee in his role in the nominated position, with various overseas suppliers;
·credit applications, variously dated, listing the nominee as contact person; and
·spreadsheet of the applicant’s purchases from Attachments suppliers for 2014 to 2018 calendar years.
The contents of Mr Bennett’s letter are as follows:
I am the Director [of the applicant, which is] a supplier of excavation and agricultural equipment, with its headquarters in Campbellfield, Victoria.
[The applicant] employs 85 people across its branches in Campbellfield, Dandenong, Ballarat and Terang in Victoria, and Brisbane in Queensland (now divested under a separate entity).
[The applicant] supplies new and used vehicle machinery and equipment. Further, [the applicant] provides spare parts for this equipment, and a maintenance service. [The applicant] also offers a large range of customisable attachments to customers, which can be supplied and fitted very quickly – either as part of equipment sales, or as a standalone product.
[The applicant] began offering these attachments as an option in 2008. In the beginning, the attachments side of the business was handled by people in the Sales and other teams. This was unsatisfactory since it led to a great deal of inefficiency and a lack of profitability.
I saw the potential in the attachments business, and I had networked extensively with suppliers in China, South Korea, and other places. [The applicant] had a competitive advantage in offering a wide range of good quality and cost-effective attachments to customers, which our competitors simply could not and cannot do.
We were in need of a properly skilled and experienced person to reform and manage Attachments as a separate division of [the applicant]. We had not found a suitable candidate.
We became aware that our current employee on a 485 visa, Mr Ericson Fernandez, who was working in stock control, apparently had the background and skill set needed for the task. We did the required advertising to try to find a suitable candidate. When none was found, we put Eric in the position of Logistics and Distribution Coordinator over Attachments in December 2015, and looked to keep Eric on a 457 visa. Attachments is a personal interest of mine in [the applicant] and Eric has been reporting directly to me.
Eric set about reforming Attachments completely. He put in place new systems and processes, and within the last two financial years Attachments has become one of the highest volume areas of [the applicant’s] business.
Eric has worked extremely hard to show that he is capable of handling all aspects of the Attachments business, from the highest-level process implementations and contract negotiations, right down to processing sales orders. It is part of the working environment of [the applicant] that everyone does what they can do to help out, and Eric took that very seriously, though Eric’s main duties remain at a higher level. Eric has been vitally important in transforming Attachments into the division that it is today, and he has the manager level authority needed to manage all the financial and operational matters of the Attachments division.
Eric has been delegating the lower level tasks, directing people in other parts of the company to carry out administrative and other duties so that he can concentrate on managerial level business. The position is in great need of a dedicated team of permanent staff that the Logistics and Distribution Coordinator could direct to do the lower level of tasks. We have not yet created a permanent team of staff for this purpose, since we have been unsure of Eric’s future due to migration uncertainty, however, if Eric’s application is successful we are prepared to hire a dedicated team of staff immediately.
Eric has proven to be a very effective Logistics and Distribution Coordinator, and he is an irreplaceable staff member for [the applicant]. For the sake of everyone who works at [the applicant], we sincerely hope that Eric will be able to continue in this position…
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018 and does not apply in this case. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Supply and Distribution Manager) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Mr Ericson Fernandez, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Mr Ericson Fernandez, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 1336111), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 8 June 2023.
Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Ericson Fernandez as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Supply and Distribution Manager (ANZSCO code 133611) and specified that the location at which the occupation was to be carried out was Campbellfield in the state of Victoria, postcode 3061.
Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that this was certified in the nomination form submitted by the applicant to the Department.
For these reasons, it is satisfied that the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). The Tribunal is satisfied that this is not the case here.
In addition, since the nomination application was lodged on 19 June and refused on 11 October 2015, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the currently applicable instrument IMMI 17/060 (for nominations lodged prior to 18 March 2018).
Currently, notes 3, 11 and 19 of IMMI 17/060 provide that the following Supply and Distribution Managers positions are excluded from being approved under r.2.72(10)(aa):
·note 3: (a) position with a base salary of less than AUD $65,000, and (b) if the person is to be transferred to fill the position, the transfer is not an intra-corporate transfer to which an international trade obligation applies;
·note 11: a position (a) based in a front-line retail setting; or (b) predominantly involving direct client transactional interaction on a regular basis;
·note 19: a position in a business that has an annual turnover of less than AUD $1,000,000.
The Tribunal is satisfied that although the initial base salary for the nominated position was AUD $53,900, the applicant increased the base salary to $65,052 (plus 9.5% superannuation) as per the most recent employment contract between the applicant and the nominee dated 29 November 2018. The Tribunal notes the submissions of the applicant’s agent that the employer was prepared to increase the nominee’s salary after a review because of the important role the nominee plays in the business. The Tribunal is therefore satisfied that the nominated occupation is not excluded due to its base salary being less than $65,000.
The Tribunal is further satisfied that the most recent complete financial reports for the applicant business (for the 2017/18 financial year) show its turnover (listed as ‘total comprehensive income’) for that year was AUD $2,991,474. Given this, the Tribunal is satisfied that the nominated position is not excluded because the business has an annual turnover of less than AUD $1,000,000.
In relation to whether the nominated position is excluded because it is (a) based in a front-line retail setting; or (b) predominantly involves direct client transactional interaction on a regular basis, the Tribunal has had regard to the detailed and credible evidence given separately at hearing by Mr Astle and Mr Thorne, the Spare Parts Manager and the General Manager respectively within the applicant business, and Mr Fernandez, the nominee, together with the detailed post-hearing written statement by Mr Kenneth Bennett, the applicant’s founder and director. Accordingly, the Tribunal is satisfied that the focus of the nominated role is on managing stock within the Attachments division within the applicant’s business, and that this mainly involves the nominee dealing with other sections of the applicant’s business and the business’ external suppliers. The Tribunal is further satisfied that it is not the role of the nominated position to deal directly with customers on a day to day basis, although part of the role on occasions is dealing with any customer issues that require urgent advice to the Sales team staff about the likely timeframe for availability of particular Attachments.
Having had regard to all the available evidence, the Tribunal is satisfied that the nominated position is not itself based in a front-line retail setting but at the head office of the nominating business and is further satisfied that it does not predominantly involve direct client transactional interaction on a regular basis. The Tribunal finds that the nominated position is therefore not excluded because it falls within the parameters of note 11 above.
As noted above, the delegate considered that the duties of the nominated position were more similar to those in Unit Group 5911 Purchasing and Supply Logistics Clerks, which contains lower level occupations than Supply and Distribution Manager, and which are not on the relevant list for the purposes of approval pursuant to r.2.72.
The Tribunal has had the benefit of receiving considerably more detailed written and oral evidence from the nominee himself and from the director of the applicant company, plus its Spare Parts and General Managers. It is satisfied from their credible and consistent evidence that the history of the applicant company indicates that the nominated position was created to deal with an underperforming area that was nevertheless assessed to have considerable potential. Moreover, the Tribunal is satisfied that the appointment of the nominee position has been instrumental in its significantly improved growth and financial performance, as evidenced by the financial information provided to the Tribunal post-hearing, and the written statement of Mr Kenneth Bennett. Accordingly, the Tribunal is satisfied that the nominated position is regarded as a senior management one within the applicant’s business, and not merely as a ‘clerk’ role. The Tribunal is satisfied from the oral and written evidence that the nominated position exercises a significant degree of autonomy within the overall business, and currently reports to the General Manager and/or the director. The Tribunal has also had regard to the evidence indicating that although it has expanded significantly over the past 10 years or so, the applicant business was founded as a relatively small family business, and therefore even senior management staff are expected to do some routine day to day tasks as well as to exercise the more senior managerial responsibilities in their respective sections or areas.

The Tribunal has had regard to the ANZSCO occupational descriptions for both Supply and Distribution Managers and the Unit Group 5911 Purchasing and Supply Logistics Clerks occupations, as set out below:
UNIT GROUP 1336 SUPPLY AND DISTRIBUTION MANAGERS
SUPPLY AND DISTRIBUTION MANAGERS plan, organise, direct, control and coordinate the supply, storage and distribution of goods produced by organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
·determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans
·preparing and implementing plans to maintain required stock levels at minimum cost
·negotiating contracts with suppliers to meet quality, cost and delivery requirements
·monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels
·operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times
·liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation
·overseeing the recording of purchase, storage and distribution transactions
·directing staff activities and monitoring their performance

Occupation:
133611 Supply and Distribution Manager
133611 SUPPLY AND DISTRIBUTION MANAGER
Plans, organises, directs, controls and coordinates the supply, storage and distribution of goods produced by an organisation.
Skill Level: 1
Specialisations:
Logistics Manager
Logistics Officer (Air Force)
Ordnance Corps Officer (Army)
Supply Chain Manager
Supply Officer (Navy)
Transport Corps Officer (Army)
…
UNIT GROUP 5911 PURCHASING AND SUPPLY LOGISTICS CLERKS
PURCHASING AND SUPPLY LOGISTICS CLERKS prepare and process orders for goods and services, monitor stock levels and supply sources and maintain stock and inventory levels, record and coordinate the flow of materials between departments, prepare production schedules, and administer and coordinate storage and distribution operations within organisations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)
In New Zealand:
NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)
At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·requisitioning supplies from stock and sending orders to production departments and other firms
·confirming completion of orders and compliance with details specified, signing tally sheets and attaching to checked items
·receiving and checking purchase requests against inventory records and stock on hand
·examining orders and compiling data for production schedules
·checking inventories and preparing delivery schedules
·examining containers to ensure that they are filled, and recording quantities
·investigating and identifying supply sources and preparing and processing purchase orders
·providing price and other information about goods to prospective customers
·counting incoming stock and reconciling it with requisitions, and updating inventory and stock location records
·establishing and coordinating the operating procedures for receiving, handling, storing and shipping goods
Occupations:
591112 Production Clerk
591113 Purchasing Officer
591115 Stock Clerk
591116 Warehouse Administrator
591117 Order Clerk

591112 PRODUCTION CLERK
Alternative Titles:
Production Recorder
Schedule Clerk
Records and coordinates the flow of work and materials between departments, examines orders for goods, and prepares production schedules.
Skill Level: 4
Specialisations:
Delivery Clerk
Logistics Clerk
591113 PURCHASING OFFICER
Alternative Title:
Procurement Clerk
Prepares purchase orders, monitors supply sources and negotiates contracts with suppliers.
Skill Level: 4
591115 STOCK CLERK
Alternative Titles:
Stock Control Clerk
Stores Clerk
Monitors stock levels and maintains stock, order and inventory records.
Skill Level: 4
Specialisations:
Inventory Clerk
Supply Clerk
591116 WAREHOUSE ADMINISTRATOR

Administers and coordinates storage and distribution operations within an organisation.
Skill Level: 4
591117 ORDER CLERK
Alternative Title:
Customer Orders Clerk
Sales Order Clerk
Receives and processes incoming orders for goods and services from inside or outside an organisation.
Skill Level: 4
Specialisations:
Internal Salesperson (Aus)
Mail Order Clerk
…
The most recent job description provided by the applicant is contained in Schedule 2 of the employment contract between the nominee and applicant dated 29 November 2018 and provides the following information about the nominated position:
Job Title: Logistics and Distribution Coordinator
Reporting to: General Manager Matt Thorne
Overall purpose of the job (summary statement):
The role of Logistics and Distribution Coordinator is critical in ensuring the efficiency of the supply chain management between the company, the client and the supplier. It monitors the movement and storage of machinery and mechanical materials, maintains the inventories of all stock and work that is in progress, and tracks goods from their point of origin to the final customer. It involves working closely with internal departments and external partners to find and source the best materials at the best price and maintaining strong links with suppliers and customers;
Key responsibilities:
Monitoring and reviewing storage and inventory systems to meet supply requirements and stock control levels;
Operating recording systems to track all movements of supplies and finished goods, and ensuring reordering and restocking at optimal times;
Overseeing the recording of purchase, storage and distribution transactions;
Assisting in the implementation and monitoring of purchasing, storage and distribution strategies, policies and plan requirements;
Liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation;
Main activities/tasks:
A) Client Order and Supply Management
Using CRM software systems for client orders and coordinating with sales representatives to verify client specification requests
Determine materials, modifications or other specifications required and search existing stock inventory and identifying potential suppliers;
Negotiate and coordinate with internal and external suppliers for supply of materials and manager purchasing paperwork;
Allocate and distribute stock materials to relevant departments and provide instructions to responsible staff members;
Monitor and verify materials used for each order then record and itemise stock transactions for client invoicing;
Complete log journals for all client and supply orders and forward to finance department for archiving
B) Internal Stock Control Inventory
Monitoring, reviewing and maintaining stock levels and inventory of materials at branch warehouses (Campbellfield, Ballarat and Dandenong)
Coordinating distribution of supplies between branch warehouses
Coordinating with relevant departments for supply orders with external and overseas suppliers
Tracking and recording shipments and order transactions
Running monthly inventory reports and journals
Develop recommendations and implementation strategies for efficient supply chain and distribution management
Assist in implementation of strategies and processes to improve systems and operational efficiency.
…
The original position description provided to the Department in December 2015 (folio 228 of the Department file) also described the position as Logistics and Distribution Coordinator and provide the following information:
1. Purpose of the position
To plan, organise, direct, control and coordinate the supply, storage and distribution of tractors and other equipment.
2. Qualification requirements
Relevant trade certificate, or
3 years of relevant experience in a similar role
3. Personal attributes
Excellent technical skills and decision making ability
Ability to work autonomously and as part of a team
Effective communication skills
4. Key responsibilities
Implementing and monitoring purchasing, storage and distribution strategies, policies and plans requirements
Monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels
Operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times
Overseeing the recording of purchase, storage and distribution transactions
Liaising with other departments and customers concerning requirements for outwards goods and associated forwarding transportation
5. Tasks and duties
Use associated computer programs to monitor and record stock level
Use data from computer programs to coordinate and control order cycles
Manage the warehouse and store area
Liaise with customers and suppliers
Receive incoming goods
Unpack containers and insure all goods are correct to order
Allocate products to sales jobs
Carry out regular stock takes
Arrange freight of goods
Order goods from local suppliers to meet sales requirements
…
The Tribunal notes that the detailed, credible and consistent evidence given by Mr Astle, Mr Thorne and the nominee at hearing corroborated and expanded upon the above position description.
As discussed at the hearing, the Tribunal considers that there is some degree of overlap in the responsibilities listed in the ANZSCO occupational descriptions for a Supply and Distribution Manager and the lower level ANZSCO occupations of Purchasing Officer, Stock Clerk and Warehouse Administrator. The distinguishing factor appears to be whether the duties of any given nominated position are sufficiently high level to be those of a Supply and Distribution Manager (designated in ANZSCO as skill level 1), rather than those of a Purchasing Officer, Stock Clerk or Warehouse Administrator (designated in ANZSCO as skill level 4). The Tribunal considers that the nature, scope and size of the nominating employer, as well as the particular tasks of the nominated role, are relevant to consider in making such a determination. Based on the information before it, the Tribunal is satisfied that the nominated role, in being responsible for the operations of the Attachments area – and having a substantial degree of financial autonomy in doing so – within the applicant’s business, exercises a level of responsibility and skill beyond that required for the lower level ANZSCO occupations listed above, although it concedes that the nominee at times carries out some of the duties of the lower level ANZSCO occupations. However, the Tribunal does not consider these outweigh his more senior and responsible tasks.
In particular, the Tribunal accepts that while the nominated position does not currently have lower level staff who report directly to him within the Attachments section, he nevertheless has the authority to direct lower level staff in different sections to assist him when needed, and also that it is planned that he will head up his own team in the event that his subclass 457 visa is approved. In addition, the Tribunal accepts that the nominated role is not the Supply and Distribution Manager for the entire organisation run by the applicant, but for the Attachments section within it. However, there is nothing in the ANZSCO occupational description which indicates that there can be only 1 Supply and Distribution Manager within a given organisation; rather, in the Tribunal’s view, this depends on the nature, size and scope of the nominating business. In this case, the Tribunal is satisfied that the applicant’s business is comprised of several discrete but interrelated sections, and that it has expanded significantly over the last 5 to 10 years, resulting in the creation of the nominated position.
The Tribunal considers that the majority of the aspects of the nominated role are appropriately characterised as higher level, more strategic responsibilities of a Supply and Distribution Manager.
In conclusion, the Tribunal finds that the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10)(AB).
Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings consist of his base salary of $65,052 plus 9.5% superannuation (total salary package of $71,175) as per the employment contract dated 29 November 2018. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied from the oral and documentary evidence provided by Mr Astle, Mr Thorne and Mr Bennett, the nominee, and the applicant’s agent on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
Having regard to IMMI 09/113 and the agent’s submissions, the Tribunal is satisfied that the nominated position has been identified as being covered by a federal award, the Storage Services and Wholesale Award 2010, which indicates that the minimum salary for a Storeworker Grade 4 (identified by the agent as the correct categorisation for the nominated position) is approximately $43,779 per year. (It also notes that the nominee’s most recent employment contract specifically states he is being paid in excess of this Award rate). Accordingly, the Tribunal has had regard to this and to other 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:
·the Government’s Job Outlook website in November 2018 which indicates that the average weekly earnings before tax for Supply and Distribution Managers are $1,650 before tax (or $85,800 annually, which equates to approximately $64,652 after tax and Medicare levy, assuming a marginal tax rate of 32.5% using ASIC’s Moneysmart website Australian income tax calculator): Payscale website ( report (accessed 11 December 2018) provides a salary range for a Distribution Manager in Australia of $49,771 to $122,555, with the median salary being $76,126;
·a Payscale website ( report (accessed 11 December 2018) provides a salary range for a Supply Chain Manager in Australia of $68,301 to $156,266, with the median salary being $103,000;
·advertisements for various full time Supply and Distribution Manager positions (or similar) in Melbourne listed on Seek.com.au as at 11 December 2018 where a salary range is given:
oInventory Controller (Supply Chain), Melbourne bayside and south eastern suburbs, $60,000 to $70,000 plus superannuation (advertised 4 December 2018);
oDistribution Manager, Melbourne, up to $85,000 plus superannuation (advertised 27 November 2018); and
oNational Inventory Manager, Melbourne eastern suburbs, $110,000 to $130,000 plus superannuation, advertised 10 December 2018.
The Tribunal is satisfied from the most recent salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation, although it is at the lower end, somewhat at odds with the assertions made on behalf of the applicant about the importance of this role within the business. However, the Tribunal notes that the position appears to have been the subject of at least one salary review and increase since the nomination application was lodged.
On balance, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings are $65,052 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
The Tribunal is further satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will also be greater than the TSMIT. In particular, the Job Outlook average earnings and the Payscale salary range median figures all exceed the TSMIT, as do the salary ranges for the positions listed on Seek.com.au.
On balance, therefore, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Department’s delegate did not consider whether the nominated position was genuine, as he concluded that r.2.72(10)(aa) was not met and thus did not go on to consider r.2.72(10)(f).
Given the evidence before it, particularly the evidence discussed above in relation to r.2.72(10)(aa), the Tribunal is satisfied that the position associated with the nominated occupation is genuine. In reaching this conclusion, the Tribunal gives weight to the history of the applicant’s business expansion, particularly the Attachments section, the subsequent creation of the Attachments section as a discrete unit within the applicant’s business, and the recruitment of an internal employee (the nominee) to fulfil the role. The Tribunal also accepts the evidence of Mr Astle, Mr Thorne and Mr Bennett about the significant improvements in the Attachments section effected by the nominee since his commencement in the role.
Accordingly, the Tribunal is satisfied that the position associated with the nominated occupation is genuine, and it finds that the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument for these purposes.
The Tribunal is satisfied that the applicant provided a recent contract of employment for the nominee dated 29 November 2018, provided to the Tribunal, indicating that the nominee’s salary had been increased to $65,052 plus superannuation. The original employment contract provided to the Department in 2015, when the applicant’s salary was $53,900 plus 9.5% superannuation.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/137. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal is satisfied that the nominated occupation of Supply and Distribution Manager is a Skill Level 1 occupation and is thus exempt from labour market testing under IMMI 13/137.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2019] AATA 1574

25 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction