Pacific Salt Pty Ltd (Migration)

[2018] AATA 3916

Pacific Salt Pty Ltd (Migration) [2018] AATA 3916 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pacific Salt Pty Ltd

CASE NUMBER:  1614190

DIBP REFERENCE(S):  BCC2016/312845

MEMBER:Bridget Cullen

DATE:19 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 September 2018 at 1:44pm

CATCHWORDS
MIGRATION – nominating employer – direct entry nomination stream – whether  tasks match nominated position – employment contract does not reflect performed duties – further evidence about nominee’s duties provided to the Tribunal – lawful business – seeking to provide the nominee with full-time employment – employment conditions – weekly wage under the Award rate – use of a company car a significant benefit – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), r 5.19

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 18 August 2016 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 21 January 2016 for the occupation of Management Accountant (ANZSCO 221112) and identified Ms Thi Phuong Lien Nguyen as the nominee. 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant's nomination did not satisfy r.5.19 (4)(a)(ii), 5.19(4)(b), 5.19(4)(c), 5.19(4)(d), 5.19(4)(e), 5.19(4)(h)(i)(A) and 5.19(4)(h)(i)(B)(I) of the Regulations. Although the Applicant provided a completed payment for visa certification form for sponsors/nominators to the Department, the Applicant failed to provide any further materials, and the delegate proceeded to make a decision after a period of 6-months lapsed since lodgement.

5.    The Tribunal conducted a joint hearing of the review of the nomination refusal, and related visa refusal, on 17 August 2018.  The applicant was represented in relation to the review by its registered migration agent. Mr Murray Olsson, the National Operating Manager of the applicant, which operates a large, multifaceted national salt business, appeared before the Tribunal to give evidence, as did the nominee, Ms Nguyen.

6.    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

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

8.    The applicant has filed a significant volume of additional materials in the Tribunal, relating to various aspects of its business, financial position, compliance with training benchmarks, and the nominated role. 

The application is compliant: r.5.19(4)(a)

9. Regulation 5.19(4)(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) of the Migration Act 1958. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

1. The Tribunal finds that the application was lodged in the approved form, and that the applicable fee has been paid. The applicant completed the required written certification relating to “Paying for visa sponsorship” by completing the applicable form and indicating that the applicant had not engaged in conduct in relation to the nomination that constitutes a contravention of s245AR(1).

2. On the basis of the PAYG summary, pay slips, reference letter from the applicant, and executed employment contracts provided, the Tribunal finds that the nominee has worked for the applicant, in various roles, since July of 2013.

3. According to the ANZSCO Position Description for Management Accountant (221112), a “Management Accountant” can be described as follows:

Accountants plan and provide accounting systems and services relating to taxation and the financial dealings of organisations and individuals, and advise on associated record-keeping and compliance requirements.

1. Further, a Management Accountant could be expected to perform the following tasks:

   • assisting in formulating budgetary and accounting policies
   • preparing financial statements for presentation to boards of directors management shareholders and governing and statutory bodies
   • conducting financial investigations preparing reports undertaking audits and advising on matters such as the purchase and sale of businesses mergers capital financing suspected fraud insolvency and taxation
   • examining operating costs and organisations' income and expenditure
   • providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
   • providing financial and taxation advice on business structures plans and operations
   • preparing taxation returns for individuals and organisations
   • liaising with financial institutions and brokers to establish funds management arrangements
   • introducing and maintaining accounting systems and advising on the selection and application of computer-based accounting systems
   • maintaining internal control systems
   • may appraise cash flow and financial risk of capital investment projects

2. The applicant provided the Tribunal with a copy of the proposed employment contract for the nominated employee dated 20 February 2017, which states that the nominated employee will be employed in the role of “Management Accountant”. 

3. The contract utilises a template entitled “Template – Clerical Permanent Employee” and indicates that the nominated employee will be employed subject to the “Clerks – Private Sector Award 2010 MA000002”.  The Award Instrument is publically available on the Fair Work Commission website, and indicates that “This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees”.

4. Section 3.1 of the Award Instrument indicates that “clerical work” is defined as:

   work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk

5. During the hearing, the Tribunal queried the reference to the award instrument, as it wondered whether it might indicate that the work performed by Ms Nguyen was more aligned with that of a clerical, bookkeeper or accounting clerk position than that of a Management Accountant. Mr Olsson explained that the contract was drawn up by a Migration Law firm, as the applicant needed to try and formalise the arrangements it had in place with Ms Nguyen. The Tribunal is satisfied that the contract was prepared by a legal practitioner that was perhaps more familiar with migration law than with industrial law.  The contract, in so far as it incorporates the Award Instrument, does not accurately reflect the duties that are in fact being performed by the nominee.

6. Ms Nguyen and Mr Olsson explained that the duties include tasks that are significantly more complex than clerical type accounting tasks.  The tasks performed by Ms Nguyen include the following:

• Preparing financial reports for the Director – Genevieve Cameron; National operating manager – Murray Olsson; Sales Manager – David Dwyer;

• Investing/analysing financial reports, working with managers and services providers to solve problems found;

• Preparing costing and pricing reports for management level;

• Customising sales reports to assist operating manager, sales manager and sales representatives in pricing for all products (distributers, wholesale, retailers and volume discount accounts);

• Managing and assisting capital investments in raw materials (bulk salt) and other projects (solar systems, weather station, factory maintenance…), working with Murray Olsson, state managers, financial controller, suppliers, banks, local authorities, reporting progresses and outcomes to Charles and Murray;

• Managing national electricity accounts, working with state managers, financial controller, reporting power expenses to the owner – Charles Olsson;

• Managing nationally company’s vehicles (registration and insurance), fuel in Brisbane and bulk fuel in Port Alma - working with state managers and services providers;

• Planning actions as requested by the Australian Packaging Covenant, working with state managers and other managers to manage related matters (including waste and recycle resolution) to ensure Olsson’s actions will contribute to our better environment; and

• Assisting the Quality manager – Leng Yang – in internal audit process to meet quality control requirements and licenses.

1. Both Mr Olsson and Ms Nguyen were readily able to provide detail about the tasks performed, and the Tribunal accepts the evidence given by them in relation to the scope and nature of the work that is required of a Management Accountant within the applicant’s business structure.  As their evidence was detailed, and accorded with common sense and the tasks set out in the ANZSCO, the Tribunal accepts their joint evidence as accurately and honestly reflecting the nature of the work being performed.  The Tribunal accepts their evidence that they did not intend to reflect that the work is clerical, and relied upon a solicitor who had a poor understanding of the Award System and nature of Ms Nguyen’s role when the contract was prepared.  The Tribunal prefers the evidence of Mr Olsson and Ms Nguyen in respect of the duties performed.

2. The financial documents provided by the applicant clearly demonstrate the applicant to be a significant company with gross payroll of approximately 6 million dollars in the 2014-15, 2015-16, and 2016-17 financial years.

3. The role of a Management Accountant within a corporate structure of this magnitude is readily apparent, and the Tribunal is therefore satisfied that the applicant has identified a need for a paid employee to work in the position of Management Accountant (ANZSCO 221112) under direct control of the applicant. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

1. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The applicant operates an agricultural business, focussed on the production of salt, and other related food products. The applicant’s Head Office is located in Sydney, and it also has sites located in Melbourne, Whyalla (South Australia), Port Alma (Queensland) and Adelaide. The applicant has provided a copy of its first registration, under the Companies Act 1936 (NSW) on 30 June 1960, along with a copy of its registration with the Australian Securities and Investments Commission (ABN 48 000 324 747), indicating registration of the ABN on 28 April 2000. The applicant has provided a range of promotional and marketing materials that demonstrate the nature and scope of the applicant’s salt-focussed operations.

2. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

1. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. 

2. There is no evidence before the Tribunal to suggest that the applicant is involved in labour hire activities. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

2. The applicant provided the Tribunal with a copy of an employment contract for the nominated employee, Ms Nguyen, dated 20 February 2017, which states that the nominated employee will be employed in the role of “Management Accountant”.  The covering letter to the Department, and a further letter to the Tribunal, sets out that the nominated employee's full time position will be available for a minimum of 2 years from the date of approval, and the terms and conditions do not expressly exclude the possibility of an extension.

3. The Tribunal has taken into account the evidence from Mr Olsson and Ms Nguyen that the nominee (Ms Nguyen) has 'been employed in the role for a period of time' of approximately 4-years. As a result, the Tribunal acknowledges that the applicant is seeking to provide the nominee with full-time employment in the nominated position for at least two years for the purposes of paragraph 5.19(4)(d).

4. The Tribunal is satisfied the business can afford to pay the nominee’s wages of $25.30 per hour, for a 38-hour work week ($49,992.80 per annum), plus a company car to the value of $15,000 per annum, superannuation of 9.5%, and 4-weeks paid holiday leave per year, to the nominee, and is satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

5. The Tribunal has had regard to the employment contract between the nominee and applicant dated 20 February 2017 (signed on 22 February 2017), which sets out the terms and conditions of the nominee's employment. The contract indicates that it is for full-time, ongoing permanent employment commencing on 1 March 2017. There is no clause that excludes the possibility of an extension. Accordingly, the requirement in r.5.19(4)(d)(ii) is met.

6. As the criteria in both r.5.19(4)(d)(i) & (ii) are satisfied, accordingly, the requirements in r.5.19(4)(d) are met.

No less favourable terms and condition of employment: r.5.19(4)(e)

1. Regulation 5.19(4)(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.

2. Although the nominee’s weekly wage of $961.40 is negligibly less (by $5.10 per week) than the weekly rate of $966.50 referenced under the Clerk’s Private Sector Award for a Level 5 employee, the use of a company car is a benefit that the Tribunal considers would be worth significantly more than $5.10 per week.  The Tribunal also notes that the provision of a car is a significant benefit that is not provided for under the Award.  On this basis, the Tribunal considers that the remuneration level is 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.

3. Accordingly the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

1. Regulation 5.19(4)(f) 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 is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

3. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

1. Regulation 5.19(4)(g) requires that the applicant 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.

2. There is no evidence before the Tribunal that suggests the applicant does not have a satisfactory record of compliance with workplace relations of the Commonwealth and the State of Queensland.

3. Accordingly the requirements of r.5.19(4)(g) are met.

Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

2. The Tribunal determines as follows:

   ·In the nomination application, the applicant specified that the position and the nominator's business were located at Morningside, QLD (metropolitan Brisbane), which is not classified as 'regional Australia' for the purposes of r.5.19(4)(h) accordingly the Tribunal must be satisfied that the requirements of r.5.19(4)(h)(i) are met.

   ·The Tribunal accepts on the evidence before it that the applicant operates a salt production and distribution business, with significant product diversity, in Australia. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. IMMI 16/060 provides that Management Accountant ANZSCO code 221112 is a specified occupation for the purposes of r.5.19(4)(h)(i)(A).

   ·The Tribunal is further satisfied that the tasks will be carried out in Australia. Accordingly the requirements of r.5.19(4)(h)(i)(A) are met.

   ·Mr Olsson and Ms Nguyen gave evidence that the position of Management Accountant is critical to the success of the business's operations and viability in that the role involves higher level accounting duties and reporting at management level, as set out earlier in this decision.   Ms Nguyen has worked in the role since at least 1 March 2017, and has worked for the applicant since 13 July 2013. 

   ·The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Management Accountant under the nominator's direct control and that the occupation is applicable to the person identified under subparagraph r.5.19(4)(a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(i)(A) are met.

1. As the applicant's business has been operating for more than 12 months, the applicant must meet the requirements for the training of Australian citizens and permanent residents specified by the Minister for the purposes of r.5.19(4)(h)(i)(B)(I). The relevant written instrument, IMMI 13/030, specifies in Schedule A that the training benchmarks for an established business are:

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

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

   The applicant has sought to meet training benchmark (B), through employing apprentice trainees, whose annual yearly salary paid constitutes/contributes to the 1% requirement of the training benchmark.

   ·Information before the Tribunal, provided by the applicant shows apprenticeship agreements for two employees, together with group certificates of trainees and apprentices. 

   ·The applicant's accountant has provided evidence that its payroll expenditure for the 2016/17 financial period was approximately $6,077,978.95, 1% of which is approximately $60,779.79. The applicant also provided evidence of having paid in-house training expenses, apprentice wages, and external training course expenses of $148,788.80. As this amount exceeds 1% of the known payroll expenses of the applicant's business, the Tribunal is satisfied that r.5.19(4)(h)(i)(B)(I) is met.

2. Accordingly the requirements of r.5.19(4)(h) are met.

3. 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

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

Bridget Cullen
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval 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.

…

Direct Entry 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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

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

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

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

   (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)       are provided; or

   (ii)      would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)either:

   (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)either:

   (i)       both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).