Mr Meticulous Pty Ltd (Migration)

[2020] AATA 2788

Mr Meticulous Pty Ltd (Migration) [2020] AATA 2788 (30 June 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Meticulous Pty Ltd

CASE NUMBER:  1728690

DIBP REFERENCE(S):  BCC2017/2050321

MEMBER:  Susan Hoffman

DATE:  30 June 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal sets aside the decision under review

and substitutes a decision approving the nomination.

Statement made on 30 June 2020 at 12:53pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – temporary residence transition stream – salary compared to industry standards – training requirements – legislative changes to training benchmarks – transitional provisions – exemption from requirements for remainder of sponsorship period – expenditure on training before exemption started – decision under review set aside

LEGISLATION               
Migration Regulations 1994 (Cth), r 5.19(3)(f), Schedule 13, cl 7602(5)
Migration Amendment (Skilling Australia Fund) Regulations 2018

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 November 2017 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 9 June 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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) of the Regulations because the business did not meet the training requirements.

5. Mr Marc Hamilton-Jessop, the owner and director of the applicant business, appeared before the Tribunal on 18 June 2020 to give evidence and present arguments via telephone. The Tribunal also received oral evidence from Mr Samir Bantawa Rai, who is the employee named in the nomination. Further evidence was submitted after the hearing.

6. The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing.

7. 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

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. According to the evidence submitted, Mr Meticulous Pty Ltd started as a cleaning company with clients that included commercial buildings and strata blocks. The business expanded into building and facilities management. Mr Hamilton-Jessop said that the business was operated remotely from his home. Contact with the nominee and others was by phone or via the internet. Mr Hamilton-Jessop said that face-to-face meetings were arranged on-site, a reference to the premises to be cleaned or otherwise maintained.

   The application must be compliant: r.5.19(3)(a)

10. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

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1. Based on departmental records, the Tribunal is satisfied that the application for approval was made using the approved form and the prescribed fee was paid. It is also satisfied that the written certification pertaining to s.245AR(1) was included.

2. The application for approval identified Mr Bantawa Rai who, according to departmental records, held a Subclass 457 visa.

3. The occupation identified in the visa application was a Facilities Manager (ANZSCO code 149913). The Tribunal was satisfied largely based on a letter from Mr Hamilton-Jessop dated 10 May 2017 to the Department, but also other documents, that the identified occupation is the same as that carried out by the nominee as a holder of a subclass 457 visa, and is also satisfied that this occupation carries the same four-digit code – 1499 – as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

4. Given the above findings, the requirement in r.5.19(3)(a) is met.
   Status of the nominator: r.5.19(3)(b)

5. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

6. The nominator was approved as a standard business sponsor for the period 18 February 2016 to 18 February 2021. There was no evidence that the approval was made on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

7. The applicant submitted a range of documents to demonstrate it is actively and lawfully operating a business in Australia, including (but not limited to):

   ·     BAS covering periods from 1 July 2017 to 30 June 2019

   ·     Financial statements for 2017/18 and 2018/19

   ·     Tax return for the year ended 30 June 2019

   ·     Information obtained 15 March 2020 from the Australian Securities and Investments Commission showing the company was registered on 26 September 2002 and its ABN 42 102 322 734 is still active.

8. Given the above, the requirement in r.5.19(3)(b) is met.
   Previous employment of the nominee: r.5.19(3)(c)

9. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

   ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

   ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

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1. According to the letter of 18 March 2020, when the business first started it provided cleaning services and now has over 200 regular clients including commercial office buildings and strata blocks. From about August 2011 the business evolved into providing entire facility and building management services. Due to the growth of the business, it was decided to employ a full-time Facilities Manager. The nominee started in this role in January 2013.

2. Mr Hamilton-Jessop described in his letter how he personally manages the cleaning contracts whereas the nominee deals with the facilities management. He listed 14 clients which have a contract with Mr Meticulous Pty Ltd, stating that the nominee oversees and manages these client accounts in his capacity as full time Facilities Manager.

3. According to the letter, the nominee was granted a 457 visa on 21 January 2013 and a second 457 visa on 1 September 2016 for four years until 1 September 2020.

4. Mr Hamilton-Jessop said that he negotiated contracts with potential customers and the nominee negotiated contracts with sub-contractors whose services were required to fulfil the conditions in the contracts with customers.

5. The relevant position is that of Facilities Manager (ANZSCO code 149913) with the alternative title of building manager. The Job Description according to ANZSCO is as follows:

   Organises, controls and coordinates the strategic and operational management of buildings and facilities in a public and private organisations to ensure the proper and efficient operation of all physical aspects of a facility, to create and sustain safe and productive environments for occupants.

6. According to an organisational chart, the nominee in his role as Facilities Manager oversees various subcontractors who fall into three categories; tradesmen (electricians, plumbers, gasfitters, locksmiths, carpenters, handymen), cleaning and outdoor services (cleaners, waste disposers, pest controllers, recyclers, gardeners, tree removalists) and technicians (elevator, emergency, fire alarm, airconditioning).

7. The nominee’s job description sets out that he is to oversee and manage the operations of the buildings and facilities according to the agreed services in the contract.

8. This includes planning and coordinating various building and facilities inspections, organising equipment repairs, maintenance and refurbishments, managing the budgets and resource allocation, prepare documents to put out tenders for subcontractors, source tradesmen, contractors and subcontractors as required and oversee quality of their work, coordinate essential services such as reception, security, maintenance, cleaning and other services, respond to emergencies and urgent issues as they arise, maintain logs and records of repairs and maintenance of the building, facilities and indoor/outdoor areas.

9. The business submitted PAYG summaries for the nominee for 2015, 2016, 2017, 2018 and 2019 showing his gross pays for those years, of $56,200, $65,566, $56,200, $60,883 and $56,199.

10. In light of the foregoing, the Tribunal is satisfied that the nominee was employed for at least two years out of the three years preceding the date the nomination application was made, in the position for which he holds a 457 visa.

11. Given the above findings, the requirement in r.5.19(3)(c) is met.

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Future employment of the visa holder: r.5.19(3)(d)

1. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

2. The Tribunal is satisfied that r.5.19(3)(c)(i)) applies in this case. It is apparent from the evidence already set out that the nominee was employed on a full time basis for two years from when the nomination application was made, which was 9 June 2017.

3. The business provided a contract of employment dated 10 May 2017 which does not includes terms that expressly preclude the possibility of an extension beyond two years or any other time frame.

4. A letter submitted to the Tribunal from the business dated 17 March 2020 confirmed that the nominee was still employed there on a full time basis and had been since 21 January 2013.

5. The profit and loss statement (which appears to be generated by a accounting package rather than one drawn up by accountants) for 2018/19 recorded a loss of $5,216 on a turnover of $566,367. In his letter of 8 March 2020 Mr Hamilton-Jessop referred to a loss of $83,144 for 2017/18 and a profit of $1,442. The latter figure accords with the tax return for 2019. Mr Hamilton-Jessop anticipated the 2019/20 results to be an improvement following some strategic changes to the business. It is apparent from the letter that the nominee is highly regarded by Mr Hamilton-Jessop and plays a central role in a business that appears to have few permanent employees but large numbers of subcontractors to be managed.

6. According to the organisational chart dated March 2020, Mr Hamilton-Jessop and office manager-administrator, Mr Sharnia Dedhia, both work part time. The only other permanent employee is the nominee who works full time.

7. Mr Hamilton-Jessop said that before employing the nominee, he employed other people including Australians but they did not show any loyalty to the firm and would leave after a few months. Mr Hamilton-Jessop said that the nominee was someone he trusted and relied on. Mr Bantawa Rai spoke enthusiastically about working for Mr Hamilton-Jessop, saying that he (Mr Bantawa Rai) was number two to Mr Hamilton-Jessop who was the boss, and had also become a very good friend.

8. The Tribunal is satisfied that the nominee will be employed for a further two years.

9. Given the above findings, the requirement in r.5.19(3)(d) is met. No less favourable terms and conditions of employment: r.5.19(3)(e)

10. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

11. According to payscale.com.au, a facilities manager typically makes between $57,000 and $109,000 a year with the average being $81,825, and median being $81,000.

12. The nominee has had seven years’ experience in the role. According to payscale.com a person with between five and nine years’ experience earns on average, based on 106 salaries, $82,115 a year. Facilities managers at large organisations such as Knight Frank

    Case Number 1728690  Page 5 of 12

Australia Pty Ltd, Jones Lang La Salle and CBRE Group command salaries of between $88,000 and $90,000.

1. The Tribunal has already set out that the nominee’s gross pay for 2015, 2016, 2017, 2018 and 2019 was $56,200, $65,566, $56,200, $60,883 and $56,199 respectively. The nominee’s pay is well below the average and the median, being $56,199. His pay has barely changed over the years as it was $56,200 in 2015.

2. In a post-hearing submission dated 24 June 2020, Mr Hamilton-Jessup wrote that the applicant business offered a revised contract to the nominee on 13 January 2020 with a base salary of $67,000 plus superannuation, subject to the grant of the visa. A copy of this contract was provided as part of the submission.

3. The Tribunal asked Mr Hamilton-Jessop the basis for the rate of pay proposed for the nominee. He said that there was a minimum amount that had to be paid to 457 visa holders and that was the reason. He also said that the payscale.com.au figures were not applicable for a business like his and there were plenty of advertisements on seek.com.au that showed that.

4. The Tribunal invited Mr Hamilton-Jessop to provide evidence supporting his claim that the applicant was being paid in accordance with his duties and responsibilities as a Facilities Manager.

5. In the post-hearing submission, Mr Hamilton-Jessup wrote that the remuneration offered to the nominee was “proportionate to his skills and experience and is at par with the current market remuneration package for a similar role based in Sydney.” He clarified that there was no-one else in the business doing a similar role.

6. It was submitted that the average salary in the Sydney region for a mid-career facilities manager was $65,188 according to Payscale; was in the range $50,000 to $64,999 according to a Seek advertisement; and was in the range $65,000 to $80,000 according to an advertisement in Indeed. Mr Hamilton-Jessup made the point that due to Covid-19, there were fewer jobs being advertised but he had located relevant ones.

7. The applicant submitted a report from Payscale dated 22 June 2020 which recorded the average mid-career facilities manager salary in Sydney to be $65,188. However, the report as submitted states that it is in US currency.¹ The Tribunal located the equivalent report on 30 June 2020 as it applies to Australia and that report stated that the average salary for a facilities manager is AU$85,957. Therefore the Payscale.com report as submitted by the applicant does not support his argument.

8. The advertisement from Seek which offered pay in the range $50,000 to $64,999 was dated 17 June 2020. It was in relation to a vacancy for a Facilities Manager for a company called Cleaner Hub NSW Pty Ltd, which described itself as a family-owned wholesale business that supplies cleaning products. Based on the advertisement, the job includes managing the property from which the business operates, including managing health and safety requirements, scheduling maintenance of equipment and machinery, managing subcontractors, clients and onsite staff. The advertisement states that the successful applicant will be providing a superior level of strategic and operational management. The selection criteria include a Bachelor’s degree or Diploma in Business or Project

   1 The first page of the report refers to the United States, the second page states that the currency is in USD and the fifth page refers to pay difference by location for San Francisco, New York, Seattle, Los Angeles, Chicago, Atlanta and Ann Arbor in Michigan

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Administration, three years of relevant experience at a management level, and experience in building management, managing subcontractors and safety management.

1. The Facilities Manager position which advertised a pay range of $65,000 to $80,000 was in relation to a vacancy at YLD Technical spaces, which rents out laboratory and technical spaces on short and long term bases from its newly-built facility. The job entails dealing with client queries; advertise, select and procure supplier services for the facility; conduct tours of the spaces for clients and tenants; manage workplace health and safety issues for the facility; monitoring key accounts and compile monthly reporting to management. Three years’ experience in facility management was essential and tertiary qualifications preferable.

2. The Tribunal notes that the applicant business is a small operation with a turnover of only $566,367 a year in 2018/19, and apart from the business owner and administrator, both of whom work part-time, the only permanent employee is the nominee. Given that, the Tribunal is satisfied that comparison with large businesses with multi-million turnovers is not reasonable.

3. Having considered the two advertisements submitted by the applicant compared with the nominee’s position and the evidence concerning the applicant business and how it operates, the Tribunal has come to the view that the salary offered on grant of a subclass 186 visa would be no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

4. The Tribunal notes that the two employment contracts included in the documents, dated 21 March 2015 and 10 May 2017, include an identical clause in relation to hours of work which reads:

   7.1your ordinary hours of work will be from 9 am to 5 pm with one rostered day off every 4 weeks.

5. The Tribunal could not locate anything in those contracts that state the nominee is required to work five days a week or a 38-hour week. The wording of the contracts just quoted suggest that he is required to work every day with one day off every 4 weeks. The Tribunal notes that in his letter, Mr Hamilton-Jessop refers to the nominee working a 38-hour week. At the hearing, both Mr Hamilton Jessop and Mr Bantawa Rai confirmed that this was the case. The Tribunal accepts that the clause in the contracts just referred to was poorly worded. Mr Bantawa Raid said that he was paid properly according to his contract including holiday pay.

6. Accordingly, the requirement in r.5.19(3)(e) is met.
   Training commitments and obligations: r.5.19(3)(f)

7. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.

1. The most recent sponsorship approval was granted from 18 February 2016.

2. Changes in the legislation that applied from 12 August 2018 (see the Migration Amendment (Skilling Australian Fund) Regulations 2018) removed the obligation of approved standard business sponsors to meet training benchmarks. This obligation was replaced by the requirement to pay a ‘nomination training contribution charge’ but that only applied to

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nomination applications made on or after 12 August 2018 which is not the case with this application. This application was lodged on 9 June 2017.

1. A transitional provision (cl 7602(5) of Schedule 13 to the Migration Regulations 1994) exempted a business sponsor from having to comply with the training requirements for a period of 12 months ending on or after 12 August 2018.

2. The Tribunal takes the view therefore that it should consider compliance with the training benchmark requirements from 18 February 2016 to 18 February 2018, as the next 12-month period extends beyond 12 August 2018.

3. Because of the transitional arrangements, the Tribunal is satisfied that the nominator is exempt from complying with the training requirements for the remainder of the standard business sponsorship period.

4. The training benchmarks that applied when the visa application was lodged were specified in IMMI 13/030. A business met the benchmark by demonstrating:

   ·Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments to an allocated industry training fund that operates in the same industry as the business; or

   ·Recent expenditure to the equivalent of at least 1% of payroll of the business in the provision of training to employees of the business.

5. In the nomination application form, the following responses were made:

   ·The applicant responded “Yes” to a question as to whether or not the applicant had contributed to an industry training fund in the past 12 months.

   ·The applicant stated that they had one Australian employee (permanent residents or citizens) and two foreign employees.

   ·The payroll figure for the previous 12 months was $101,033 and an amount of $3,900 was contributed to an industry training fund, identified as TAFE. No further details about this were given on the form.

6. As noted above, the relevant period with regard to training obligations is from 18 February 2016 to 18 February 2018. It is made up of two 12-month periods of 18 February 2016 to 17 February 2017 (year 1) and 18 February 2017 to 18 February 2018 (year 2).

7. The relevant period cuts across financial years 2015/16, 2016/17 and 2017/18. Based on the profit and loss statement for 2017/18, wages were $81,328 and superannuation was $5,784 in superannuation.

8. In a letter to the Tribunal dated 18 March 2020, Mr Hamilton-Jessop submitted that the total payroll expenditure was $515,502.88 for year 1 and $485,528.30 for year 2, and that these figures were the result of adding salaries, superannuation and payments to contractors. The 1% threshold amounts based on these figures are $5,155 and $4,855.

9. Mr Hamilton-Jessup said that the Department sent him information about departmental policy in which it stated that payments to contractors were to be included in the total payroll figure and as that was the case, it was logical that expenditure on training for them counted towards the training requirement. In his post-hearing submission, Mr Hamilton-Jessop

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included departmental policy to do with working out the payroll figure. The relevant part reads as follows:

For the purposes of the training benchmarks...payments made to contractors or sub­contractors should be included as payroll expenditure if the contractor provides some labour services in fulfilling the requirements of the contract and the labour provided relates to the service provided by the applicant’s business (that is, the contractor is a bricklayer and the applicant is a construction company). Payments made to contractors, such as an accountant or a migration agent, who provide a service to the applicant that is not directly related to the service the applicant provided to its customers should not be included as payroll expenditure. If payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may also be counted towards meeting the benchmarks.

1. Departmental files include receipts from TAFE NSW - Sydney Institute which show the following payments were made by the applicant in respect of training benchmarks during the relevant period;

•	4 March 2016	$1,900	year 1
•	28 November 2016	$2,000	year 1
•	15 June 2017	$100	year 2

1. Receipts for training provided to Peter and Karen (no surnames provided at that time) were submitted prior to the hearing. One receipt was dated 9 January 2017 and was for $5,200. The training, which according to the receipt was provided face to face, was for courses titled Manage Risk and Facilitate Continuous Improvement, with each costing $2,350 plus an enrolment fee of $500. This expenditure was made during year 1.

2. The second invoice for $4,900 was dated 15 January 2018, with the same two people attending, and was for courses titled Manage Employee Relations and Manage People Performance. This expenditure was made during year 2.

3. In the post-hearing submission, Mr Hamilton-Jessup submitted further evidence about Peter and Karen. He stated that Mr Peter Hung was working as a supervisor at the time and Ms Karen Leettezia-Hung was employed as a team leader. He wrote that they were both contractors who reported to the nominee. Mr Hamilton-Jessup submitted copies of their passports which show that they were Australian citizens at the time of the training. He also submitted copies of documents headed Activity Log – Detail which support the claim that Mr Hung and Ms Leettezia-Hung were working on a contract basis for Mr Meticulous at the relevant times.

4. Given the additional information provided after the hearing, in particular the additional information about Mr Hung and Ms Leettezia-Hung, the Tribunal is satisfied that training costs incurred on their behalf can be counted towards the benchmark.

5. That means in year 1, expenditure on training that can be counted towards the benchmark was $5,200 and in year 2 , the amount was $4,900. These exceed the 1% threshold amounts. In addition, payments were made to TAFE NSW - Sydney Institute as recorded above.

6. Accordingly, the requirement in r.5.19(3)(f) is met.

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No adverse information known to Immigration: r.5.19(3)(g)

1. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

2. There was no evidence before the Tribunal of any adverse information concerning the nominator or a person associated with the nominator.

3. Accordingly, the requirement in r.5.19(3)(g) is met.

   Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

4. Regulation 5.19(3)(h) requires the applicant to have 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.

5. There was no evidence before the Tribunal of anything other than a satisfactory record of compliance with the laws of Commonwealth and the state of New South Wales, which is where the applicant operates the business and employs people, in relation to workplace relations.

6. Accordingly, the requirement in r.5.19(3)(h) is met.
   CONCLUDING PARAGRAPHS

7. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Susan Hoffman
   Member

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ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions (employer nomination)
...

1. 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

1. 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

   (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;

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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.

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