Rich Joondalup Pty Ltd (Migration)
[2022] AATA 2163
•30 June 2022
Rich Joondalup Pty Ltd (Migration) [2022] AATA 2163 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Rich Joondalup Pty Ltd
REPRESENTATIVE: Ms Nannan Liu (MARN: 0964114)
CASE NUMBER: 1904758
HOME AFFAIRS REFERENCE(S): BCC2018/6208024
MEMBER:Katie Malyon
DATE:30 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 30 June 2022 at 6:23 pm
CATCHWORDS
MIGRATION – nomination of a position – occupation of Cook – limited-service restaurant – streamline franchise menu – inapplicability condition – labour market testing for specialists inconsistent with an international trade obligation – limited sales via delivery services – extensive and varied a la carte menu including celebratory food items – COVID-19 pandemic restrictions on in-store dining – genuine position – employment conditions no less favourable – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 359
Migration Regulations 1994, Schedule 2, cl 482.223; rr 1.13, 2.57, 2.72, 2.73, 5.42CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Qiao v MIAC [2008] FMCA 380
Re Drake v MIEA (No 2) (1979) 2 ALD 634STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2019 to refuse to approve a nomination made by Rich Joondalup Pty Ltd T/A PappaRich Joondalup (the Company) under s 140GB of the Migration Act 1958 (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The Company applied for approval on 16 January 2019. A nomination of an occupation for an applicant or proposed applicant of a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated in one of 3 alternative streams: the Short-term stream; the Medium-term stream; or, the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination. Relevant criteria from the Regulations are extracted in Attachment A to this decision. Additional criteria in relation to labour market testing are specified in s 140GBA of the Act and are extracted in Attachment B.
In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream. The Company nominated the occupation of Cook ANZSCO 351411 for its nominee Mr Pawan Pokharel. Mr Pokharel is a national of Nepal.
The delegate decided not to approve the nomination on the basis she formed the view that:
·information provided indicates that the Company is a franchise of PaapaRich (sic) Australia Pty Ltd;
·it offers a streamline menu similar to fast food restaurants;
·the business does not employ a Chef as per the Organisation Chart;
·the PappaRich franchise business model has a centralised kitchen which plays a major role in ensuring that all ingredients for each outlet are delivered fresh and that meals are cooked to standard specification.
The delegate concluded that, therefore, the menu items will require only very simple and low skilled cooking methods with minimal variation. Based on this evidence, the delegate was satisfied that the position is in a limited service restaurant and therefore the nominated position is affected by a restriction specified in the relevant legislative instrument. As a result, the nominated occupation is not applicable to the nominee in this position and so the delegate concluded the requirement of reg 2.72(8)(b) of the Regulations is not met.
Background
The Company operates a PappaRich restaurant at Lakeside Joondalup Shopping Centre, 26 kms north of Perth in Western Australia. It has seating capacity for up to 100 diners and has direct access from the street. The restaurant serves Malaysian food with both dine-in and takeaway options, although it is predominantly dine-in. The Company’s menu bears the title GO GLOBAL, EAT MALAYSIAN. It states ‘Malaysia is a melting pot of Asian cultures and cuisines with Malay, Chinese and Indian influences interwoven with the ethnic tribes of Borneo - creating a microcosm that is uniquely Malaysian which is reflected in its cuisine’. The Company’s business has been operating in Joondalup for more than 7 years. It currently employs 3 full-time Cooks in the kitchen who are supported by a number of part-time and casual Kitchenhands as well as Dining Hall staff.
The PappaRich brand is owned by Malaysia-based company Roti Roti International Sdn Bhd which licenses the operation of its Malaysian restaurants and kiosks globally. The Company’s related entity Rich Cockburn Pty Ltd operates a separate PappaRich restaurant in Cockburn, south of Perth. There are nearly 3 dozen PappaRich franchise outlets across Australia, some of which are boutique, stand-alone restaurants such as the one which is operated by the Company at Joondalup and others are small retail outlets in shopping malls or arcades, often selling other branded foods such as Korean Nene Chicken and Hokkaido Baked Cheese Tarts.
Tribunal’s s 359(2) letter
The Tribunal wrote to the Company on 6 September 2021 pursuant to s 359(2) of the Act and invited it to provide updated and current information to demonstrate that it meets all of the relevant requirements of the Act and the Regulations. In response, the Company’s representative provided a submission together with a range of documentation.
Following constitution of the matter to the Member and having reviewed documentation provided in response to the Tribunal’s s 359(2) letter, the Tribunal invited the Company to attend a hearing on 15 March 2022. The Tribunal also requested the Company provide further documentation including financial information (signed Financial Reports, Tax Return printouts issued by the Australian Taxation Office (ATO), Business Activity Statements as lodged with the ATO) as well as evidence to address the delegate’s reasons for refusing the Company’s nomination including further photographs of the kitchen as well as the dining hall. The Tribunal also requested an opinion letter from a lawyer specialising in employment law commenting on:
1)the appropriate classification of the nominee under an award such as the Restaurant Industry Award 2020 (the Restaurant Industry Award) including the basis for that classification;
2)the application of the Restaurant Industry Award to the nominee’s employment;
3)the Australian Market Salary Rate (AMSR) for the nominated occupation of Cook with the Company having regard to provisions of the relevant legislative instrument IMMI 18/033; and,
4)the lawfulness of the signed contract of employment made between the Company and nominee Pawan Pokharel dated 11 January 2021 with reference, in particular, to the requirement that the nominee must work ‘38 ordinary hours per week … plus … at least 10 hours overtime per work’ and be paid ‘employer-provided superannuation of 9.5% of total remuneration’.
On 3 March 2022, the Company requested a hearing postponement due to serious staff shortages in the business as well as time to provide the documentation requested by the Tribunal. The representative noted that the Western Australian border fully opened on the day of the request (3 March 2022) following its closure for 2 years due to the COVID-19 pandemic[1] and, as a result, the Company is hopeful that it may be able to recruit more staff to deal with its staff shortages. The Tribunal agreed to postpone the hearing to 12 April 2022.
Hearing - 12 April 2022
[1] WA border open after two years of COVID-19 travel restrictions, bringing tears of joy in Perth-ABC News
One of the Company’s shareholders and its former director, Deddy Winardi, appeared before the Tribunal on behalf of the Company to give evidence and present arguments at a MS Teams videoconference hearing on 12 April 2022. Mr Winardi is also a guarantor of the Company’s obligations set out in the PappaRich Australia Pty Ltd Franchise Agreement signed on 7 September 2015 (the PappaRich Franchise Agreement), a copy of which was provided to the Tribunal. The PappaRich Franchise Agreement was initially for a term of 5 years to 7 September 2020 but was extended until 30 September 2022 pursuant to the signed supplementary Agreement made 12 October 2020, a copy of which was also provided to the Tribunal. In addition, the Tribunal received oral evidence from Mr See Peng Ang (aka Tony Ang) who is not only a shareholder of the Company but is also engaged to work across PappaRich restaurants to ensure standard operating procedures are maintained. He also works with the Company’s related entity’s PappaRich restaurant in Cockburn, 24 km south of Perth.
The hearing was held as a combined hearing with the Tribunal’s review of the delegate’s decision to refuse a separate nomination by the Company for the position of Cook ANZSCO 351411 for its nominee Mr Low (Matter No. 1828438). In addition, the Tribunal took independent evidence from the nominees Mr Pokharel (Matter No. 1906334) and Mr Low (Matter No. 1830701). Both Mr Pokharel and Mr Low are currently working with the Company as holders of Bridging A visas pending consideration of their respective Subclass 482 visa application.
The Company and each of the nominees were represented in relation to their respective review by registered migration agent Ms Nannan Liu from Australian Education and Migration Services Pty Ltd.
During the hearing, the Tribunal acknowledged that it had been provided with the financial documentation referred to in the hearing invitation as well as a range of photographs and other evidence to address the delegate’s reasons for refusing the nomination. However, it identified the need to have further documentation provided to evidence whether the Company meets all of the relevant requirements of the Act and the Regulations for approval of its nomination. As such, the Tribunal treated the hearing as a Directions Hearing. Mr Winardi agreed to provide the Tribunal with a range of documents after the hearing.
Following the hearing, the representative provided further documentation on 10 May 2022 in support of the Company’s nomination. However, although Mr Winardi indicated at the Directions Hearing that he would provide an updated employment contract and an opinion letter from an employment lawyer regarding the AMSR for the nominated position, no such documentation was provided. Accordingly, the Tribunal again wrote to the Company on 30 May 2022 pursuant to s 359(2) of the Act and requested it forward this information to the Tribunal.
On 14 June 2022, the due date for the response to the Tribunal’s s 359(2) letter dated 30 May 2022, the Tribunal received notice that Mr Winardi had tested positive to COVID and had serious symptoms such that he has been unable to make a further appointment with the employment lawyer. No evidence was provided of Mr Winardi’s claimed medical condition. The representative requested a further 2-week extension to provide requested documentation. The Tribunal agreed to an extension to 22 June 2022 noting that it had initially requested this information in its hearing invitation of 25 February 2022 and had discussed the need for the employment related documentation documentation at the hearing on 12 April 2022 which was attended by both Mr Winardi and Mr Ang.
Subsequently, on 21 June 2022 the Tribunal received a request from the representative for a further extension of time and attached an email communication from Employment Lawyer Lucy Wardle with MDC Legal based in Perth dated 21 June 2022. In her email, Ms Wardle thanks Mr Winardi for his ‘time on the phone today’ and confirms that the Company ‘is seeking advice a) on award coverage and the award salary rate for the role of cook and b) assistance in drafting an employment contract for that role’. Ms Wardle notes she anticipates being in a position to provide the advice and contract early in the week commencing 27 June 2022. The Tribunal granted an extension of time to that date.
On 27 June 2022 the Tribunal received a copy letter of advice from MDC Legal addressed to Mr Winardi dated 27 June 2022. The letter refers to the Tribunal’s s 359(2) letter referred to above at paragraph [14] and addresses the issues raised in the Tribunal’s letter. MDC Legal’s letter of advice as discussed below. Also provided by the representative was an Employment Agreement made between the Company and the nominee Mr Pokharel dated 27 June 2022 (the Employment Agreement). The Employment Agreement supersedes all previous contractual arrangements between the Company and Mr Pokharel regarding his employment by the Company.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate.
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 work sponsor and meets all of the relevant requirements in reg 2.72: s 140GB(2) of the Act. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which it is liable. In addition, the labour market testing requirements in s 140GBA of the Act 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 reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that: the nomination was made using the approved online form and was accompanied by the correct fee; the Company nominated an occupation under s 140GB(1)(b) of the Act and it identified, in the nomination, a person who will apply for a Subclass 482 visa and who will work in the occupation, Pawan Pokharel; the Company identified the location where the nominee will carry out the occupation, its PappaRich restaurant in Joondalup; and, it included the name and 6-digit ANZSCO code for the nominated occupation, that is, Cook ANZSCO 351411. The Company’s nomination also contains the required certifications.
Therefore, the Tribunal is satisfied reg 2.72A(3) of the Regulations is met.
No adverse information known to Immigration
Regulation 2.72(4) 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 regs 1.13A and reg 1.13B of the Regulations.
The Tribunal notes that records of the Fair Work Ombudsman (the FWO) confirm that a number of PappaRich franchise operators in Sydney have been issued with heavy fines following underpayment of wages.[2] However, based on its review of ASIC searches of the Company’s directors, its shareholders including its corporate shareholders, the Tribunal is satisfied that none of the natural persons involved in the Company or its associated entities have been the subject of investigation or adverse findings by the FWO.
[2] News and Media search - Fair Work Ombudsman
Further, the Tribunal has had regard to the Department’s records, including its Integrated Client Services Environment records, and has found no information to indicate that there is any adverse information known to Immigration about the Company or a person associated with the Company.
For these reasons, the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Evidence before the Tribunal is that the Company is a standard business sponsor. Its most recent sponsorship application was approved on 14 May 2018 for 5 years effective until 14 May 2023.
For these reasons, the requirement in reg 2.72(5) is met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no evidence that the Company owes any debt of the kind mentioned in s 140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As confirmed below at paragraph [102], the Tribunal is satisfied that the Company is not required to pay a nomination contribution charge and so there is no debt owed under s 140ZO.
For this reason, the requirement in reg 2.72(5A) is met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 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 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7); and,
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
The Department’s records confirm that, at the time the Company lodged its nomination on 16 January 2018 identifying Pawan Pokharel as the nominee, Mr Pokharel was the holder of a Subclass 457 granted 2 August 2017 and valid to 2 February 2019.
Having reviewed the Company’s nomination lodged with the Department, the Tribunal finds that it did not list on the nomination another Subclass 457 visa holder who was granted their visa on the basis of family membership with Mr Pokarel. In his Subclass 482 visa lodged with the Department and linked to the Company’s nomination, Mr Pokharel states that he is married and that his wife Sachina Khadka is included in his Subclass 482 visa application. However, Department records confirm Ms Khadka was not granted a Subclass 457 visa on the basis of her relationship with Mr Pokharel. She remains offshore. In the circumstances, the Tribunal accepts it is reasonable to disregard the requirement in reg 2.72(6)(a) and reg 2.72(7) of the Regulations.
There is no evidence before the Tribunal that the Minister has requested evidence that the nominee Mr Pokharel satisfy the English language test requirements. Accordingly, the Tribunal accepts it is reasonable to disregard the requirement in reg 2.72(14) of the Regulations.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The occupation of Cook ANZSCO 351411 is specified in IMMI 18/048. In the Tribunal’s opinion, its assessment of whether the Company meets reg 2.72(8) of the Regulations requires it to consider 3 issues:
1) whether the majority of tasks of the position as set out in the Employment Agreement most closely align with the nominated occupation of Cook;
2) the impact of the inapplicability condition (also known as a caveat) in IMMI 18/048 made pursuant to reg 2.72(9) of the Regulations on the nominated occupation of Cook; and,
3) whether the occupation applies to the nominee.
The Tribunal has considered these 3 issues below.
Do the majority of proposed tasks most closely align with the nominated position?
As set out in the Employment Agreement, the nominee Mr Low is expected to perform the
following duties:
1) To prepare materials and Asian dishes for PappaRich
2) To stir-fry and deep fry food ingredients and assemble them to meet customer’s culinary orders
3) To deliver orders to the highest quality and efficiently in the shortest amount of time
4) To adhere to the food and safety hygiene guidelines of the Health Department of WA
5) To be able to process and cook food ingredients with stir-fry, deep fry, steam, oven, and boiler and assemble them to meet customer’s culinary orders for PappaRich
6) To be able to control temperature, time and correct procedure of cooking kitchen facilities to ensure food quality and dish presentation standard are met
7) To prepare and make variety of soup, sauces, dressings and meat, poultry and fish fabrications
8) To prepare bulk meat, vegetables, rice and soup to stock fridges in preparation for busy high demand trading times
9) To maintain cooking facilities and assist in training and supervision of kitchen hands for PappaRich.
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary states that Cooks prepare, season and cook food in dining and catering
establishments. The tasks of a Cook as set out in ANZSCO are as follows:
UNIT GROUP 3514
Cooks prepare, season and cook food in dining and catering establishments. Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group.
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 III including at least two-years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
Tasks Include:
· examining foodstuffs to ensure quality;
· regulating temperatures of ovens, grills and other cooking equipment;
· preparing and cooking food;
· seasoning food during cooking;
· portioning food, placing it on plates, and adding gravies, sauces and garnishes;
· storing food in temperature controlled facilities;
· preparing food to meet special dietary requirements;
· may train other kitchen staff and apprentices.
Occupation
·351411 Cook
351411 Cook
Prepares, season and cooks food in a dining or catering establishment.The Tribunal has also considered evidence at the hearing provided by the nominee Mr Pokharel and his colleague Mr Low regarding their duties as Cooks as well as independent evidence from Mr Winardi and Mr Ang in relation to the operation of the Company’s business, its kitchen, the number of staff it employs in the kitchen and its dining hall. Recent Payroll Summaries confirm that the Company currently employs 10 staff, down from 13 as at 15 April 2021.
Having regard to evidence provided, the Tribunal is satisfied that the occupation proposed to be undertaken by Mr Pokharel as the holder of a Subclass 482 visa is correctly classified as that of Cook ANZSCO 351411.
What is the impact of inapplicability conditions on the nominated occupation?
Relevant to the circumstances of this case, IMMI 18/048 provides that the occupation of Cook 341411 is subject to one inapplicability condition (or caveat). In this regard, for the purposes of reg 2.72(9) of the Regulations, item 8 of s 8 of IMMI 18/048 relevantly provides that the occupation of Cook is inapplicable for Subclass 482 visa purposes if the position is in a ‘limited service restaurant’. As noted above, this was the basis on which the delegate refused the Company’s nomination on 13 February 2019.
The term ‘limited service restaurant’ is defined in s 4 of IMMI 18/048 and ‘includes the following’:
1) a fast food or takeaway food service;
2) a fast casual restaurant;
3) a drinking establishment that offers only a limited food service;
4) a limited service cafe;
5) a limited service pizza restaurant.’
The Department’s Procedures Advice Manual (PAM) provides detailed guidance on assessing whether the inapplicability condition applies to the occupation of Cook. Relevant provisions at the time of lodgement of the Company’s nomination are extracted in Attachment C. The Tribunal has considered the nature of the Company’s business to decide whether it is a limited service restaurant. In exercising its power on review, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[3] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power (not relevant in the circumstances of this case), the preferable decision. Whilst not bound by policy, the Tribunal considers it desirable for the purposes of consistency in decision-making to have regard to policy.
[3] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380
Based on the evidence provided, the Tribunal is satisfied that the Company’s business is not a fast food or takeaway service. Although the Tribunal acknowledges that the Company’s business offers takeaway food for customers, it is satisfied that it is predominantly a dine-in facility as evidenced by the restaurant floor plan and photos provided. Further, the Profit & Loss Statements provided indicate that the Company engages delivery services such as Uber, Deliveroo and Groupon: however, such services represent only 10% of sales. Mr Winardi told the Tribunal that another 10% of sales are represented by takeaways. He added that, during the COVID-19 pandemic, income from delivery services and takeaways together represented up to 30% of the Company’s revenue and, as a such, the substantial majority of the Company’s income is derived from customers who dine-in.
The Tribunal is also satisfied that the Company’s business is not predominantly a drinking establishment that offers only a limited food service. The Company does not sell liquor at all although it does permit customers to bring their own alcohol and it charges a corkage fee for diners who bring their own wine or beer.
Further, the Tribunal is satisfied that the restaurant is not a limited-service cafe such as a coffee shop or mall cafe. The Company has provided the floor plan of its premises as well as multiple photos of the internal and external perspectives of the premises. Photos provided and a search of the business on Googlemaps confirm the restaurant premises are on the ground floor of the Lakeside Joondalup Shopping Centre, accessible directly from Boas Avenue, Joondalup. As such, Tribunal is satisfied the Company’s business is not a mall cafe. Additionally, it is evident the business is not a limited-service pizza restaurant as it does not sell pizzas.
The issue for the Tribunal is, therefore, whether the Company’s business is a fast casual restaurant. Based on the extensive evidence provided including photographs of the premises, a copy of the menu and submissions from the representative as well as oral evidence at the hearing on 12 April 2022, the Tribunal is satisfied that:
1) the Company operates a dine-in restaurant in Joondalup, Western Australia that has a seating capacity for 100 diners. The restaurant is open Monday to Friday from 11:00 am to 2:30 pm and then again from 5:00 pm until 8:30 pm. On Saturdays and Sundays, the restaurant is open all day from 11:00 am until 8:30 pm when the last diners are admitted. As such, the Tribunal finds that the restaurant’s opening hours are not restricted to the opening hours of the Lakeside Joondalup Shopping Centre itself;
2) all patrons: are greeted by a Dining Hall attendant who takes them to a table suitable for their needs; are offered a copy of the PappaRich Joondalup menu when seated; can ask questions they have in relation to any items on the menu; have their order taken by the attendant or can choose, if they wish, to use the Order Chit and then call the attendant to take their Order Chit; have food delivered to their table by Waitstaff;
3) all food orders are paid for at the end of the meal when diners leave the premises;
4) the restaurant has a full commercial kitchen;
5) an extensive variety of a la carte Malaysian cuisine offerings are available. The menu is comprehensive and incorporates a vast range of ingredients with provision for special dietary requirements;
6) all food is prepared on-site using fresh ingredients delivered daily requiring substantial preparation and cooking using the 3 Cooks’ full range of cookery skills. This applies to all vegetables, seafood, poultry and halal meats, many of which are marinated for hours before being cooked in the restaurant’s ovens or on its stove tops. Stock is made every day on-site for soups and sauces. All food consumed by diners is cooked to order. No food is pre-prepared somewhere else and then delivered to the Company’s premises. The Company has a warehouse at Bibra Lake for storage of dry food such as bags of sugar, rice and flour. No cooked food is on display to the public. Diners can, if they wish, watch the Company’s Cooks prepare meals as its commercial kitchen is on display for customers who wish to see how meals are prepared;
7) although the Company has a comprehensive fixed menu it also offers diners extras from time to time. This includes specials at the time of Ramadan as well as when students attending orientation week are about to start their studies or they are celebrating having just completed their studies. In these circumstances, rather than use a blackboard, the Company displays posters at the entrance door of its special occasion food offerings. Copies of sample posters offering celebratory food items were provided to the Tribunal;
8) for dine-in customers, hot food is served on ceramic plates and diners are provided with stainless steel cutlery as well as ceramic spoons for soups; and,
9) when fully operational, the kitchen engages 3 full-time Cooks including the nominee Mr Low and 4 casual Kitchenhands. In addition, the Company employs 4 Waitstaff (3 of whom are part-timers and one is a casual) as well as 3 part-time and one full-time Service staff.
The Tribunal has had regard to the Department’sl policy extracted in Attachment C. As noted above, the delegate found the position is in the limited service restaurant. However, it is evident that the delegate did not have the benefit of the evidence before the Tribunal, in particular, the oral evidence of Mr Winardi, Mr Pokharel and Mr Low. Although the Tribunal acknowledges that the PappaRich Joondalup business is a franchise it does not, as concluded by the delegate, have a centralised kitchen ensuring that all ingredients for each outlet are delivered fresh. On the contrary, each of the kitchens are discrete and, as outlined above, receive fresh vegetables, poultry, meat and seafood every day directly ordered by the business, not the franchisor. While the Company’s Cooks adopt and apply the PappaRich recipes when preparing, seasoning and cooking food, they do so having regard to the products which are delivered to the Company’s premises on a daily basis, marinate meats as required and prepare soups, stock as well as sauces on a daily basis. Further, from time to time, the Company features additional foods for special occasions as outlined in paragraph [49(7)] above. Based on evidence provided including oral hearing at the hearing, the Tribunal does not share the delegate’s view that the menu items require only simple and low skilled cooking methods with minimal variation.
The Tribunal considers that, in relation to the Company’s business, there are 2 factors that weigh in favour of the business being classified as a fast casual restaurant, neither of which relate to it being a franchisee.
First, customers can opt to have their food as takeaway. However, it is the view of the Tribunal that the majority of restaurants across Australia now offer takeaways as an option for customers. The Tribunal acknowledges that the hospitality sector has been harshly impacted by the COVID-19 pandemic. This has been confirmed by Wes Lambert, Chief Executive Officer of the Restaurant and Catering Association in statements to the Commonwealth Government’s Joint Standing Committee on Migration considering Australia’s Skilled Migration Program on 3 March 2021.[4] Evidence provided to the Tribunal confirms that, following the lifting of COVID restrictions in Perth, the Company’s restaurant continues to rely substantially on customers who choose to dine-in, which is why the business continues to need the services of an experienced Cook such as the nominee Mr Pokharel. Second, the business does not have an on-premises liquor licence. The Tribunal accepts that the restaurant markets itself as a halal restaurant and, as such, alcohol is not available for purchase and consumption on the premises. However, the Tribunal accepts that the restaurant offers a BYO option for customers who wish to dine in.
[4] 03Mar2021
On balance, having regard to the extensive evidence provided, the Tribunal is satisfied that the inapplicability condition in relation to the occupation of Cook for a ‘limited service restaurant’ as set out in item 8 of s 8 and defined in s 4 of IMMI 18/048 does not apply in this case. It acknowledges that for some PappaRich food outlets - particularly those in shopping malls or arcades, and those selling other branded foods - this will not be the case. Policy too recognises that for food service businesses operating through a franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants: see the Notes in the commentary at paragraph 4.7.2 in Attachment C.
Does the occupation apply to the nominee?
The Tribunal acknowledges that the nominee Mr Pokharel has lodged with the Department the following evidence of his qualifications and recognised experience as a Cook:
1) a favourable TRA Skill Assessment for the occupation of Cook (Commercial Cookery) ANZSCO 351411 dated 21 December 2021 issued by VetAssess;
2) a Certificate IV in Commercial Cookery issued by the Empyrean Education Institute on 6 December 2016; and,
3) a Certificate III in Commercial Cookery issued by the Empyrean Education Institute on 6 December 2016;
In addition, the Tribunal has considered the PAYG Payment Summaries issued to Mr Pokharel and provided to the Tribunal for years ended 30 June 2019, 2020 and 2021. Prior to the impact of COVID on the Company’s PappaRich restaurant business, Mr Pokharel earned $54,999 for his work as a Cook with the Company. Evidence of payment of superannuation to Mr Pokharel’s superannuation fund with Hostplus was also provided to the Tribunal.
Based on evidence provided, the Tribunal is satisfied that the occupation applies to the nominee Mr Pokharel.
In summary, on the basis that not only does the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument but also the caveat impacting the occupation of Cook does not apply to this case and, further, the occupation of Cook applies to the nominee Mr Pokharel, the Tribunal finds that the cumulative requirements of reg 2.72(8) of the Regulations are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has considered tasks of the nominated position of Cook as set out in the extract from ANZSCO above. The duties the nominee is required to undertake as stated in the Employment Agreement and are also referred to above at paragraph [39].
Evidence before the Tribunal confirms that the nominee Mr Pokharel has been working with the Company at its Joondalup’s PappaRich restaurant as a Cook since October 2016. Based on the evidence provided, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and that, as such, the requirement in reg 2.72(10)(a) is met.
The Tribunal accepts that the Employment Agreement requires Mr Pokharel to work on a full-time basis as a Cook. Accordingly, reg 2.72(10)(b) is met.
For these reasons, the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI18/048. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)) and, if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and so reg 2.72(11) of the Regulations must be met.
The Tribunal acknowledges that the Company has provided a number of contractual agreements made with Mr Pokharel since the commencement of his employment with the Company in October 2016. Relevantly, it appeared evident to the Tribunal that the Company did not have the benefit of professional advice from a specialist employment lawyer or workplace lawyer when preparing its contracts of employment: hence, its request referred to in paragraph [8(4)] above drawing its attention to concerns regarding the contract of employment dated 11 January 2021 lodged with the Tribunal in response to its s 359(2) letter.
The Company has used the opportunity to obtain advice from highly regarded professional employment lawyers in Perth who have assisted the Company draft a new contract of employment for the nominee Mr Pokharel. The Employment Agreement has been signed by the Company’s director Simon Ng and Mr Pokharel. It provides that Mr Pokharel is to be paid $58,647.50 per annum plus superannuation in accordance with the minimum statutory requirements, currently set at 10%. The Tribunal will provide the Department with a copy of the Employment Agreement.
For these reasons, the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in a legislative instrument. The relevant instrument made by the Minister pursuant to reg 2.72(17) is IMMI 18/033 and the amount specified in s 5 of IMMI 18/033 for the purposes of reg 2.72(15)(b) is currently set at $250,000. As Mr Pokharel’s annual earnings are less than $250,000 per annum, the provisions in reg 2.72(15) must be met.
Regulation 2.57A provides for the meaning of the word ‘earnings’. In summary, it includes the person’s wages, amounts applied or dealt with in any way on the person’s behalf or as directed, as well as the agreed money value of non-monetary benefits. However, it does not include superannuation fund contributions, reimbursements or payments which cannot be determined in advance.
Where reg 2.72(15) applies, it cumulatively requires that the following criteria are met:
·the AMSR for the occupation has been determined by the applicant (that is, the Company) by reference to the relevant instrument IMMI 18/033: reg 2.72(15)(c); and,
·the AMSR, excluding any ‘non-monetary benefits’ as defined in reg 2.57A(3), for the occupation is not less than the Temporary Skilled Migration Income Threshold (the TSMIT): reg 2.72(15)(d); and,
·the nominee’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(e); and,
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f)); and,
·either there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
IMMI 18/033 sets out the method for determining the AMSR for a nominated occupation. Relevantly, s 8 of IMMI 18/033 specifies the method for determining AMSR where there is no Australian worker performing equivalent work. Based on the Organisation Chart as well as oral evidence at the hearing, the Tribunal accepts that the Company does not engage an Australian citizen or permanent resident employee undertaking equivalent work as the nominee Mr Pokharel at its PapaRich restaurant in Joondalup. On the contrary, it employs 2 other foreign nationals in the role of Cook and who also work full-time.
Where there is no Australian worker performing equivalent work but where a fair work instrument, state industrial instrument or transitional instrument is applicable to a nominated occupation, the AMSR for the nominated occupation is the annual earnings of an equivalent Australian worker specified in those instruments: s 8(a) of IMMI 18/033. However, where there is no such instrument, the AMSR for the nominated occupation is the annual earnings that would apply to an equivalent Australian worker which must be determined by reference to ‘relevant information’: s 8(b) of IMMI 18/033. The term ‘relevant information is defined in s 4 of IMMI 18/033 to include, but is not limited to: information published on the Australian Government’s Job Outlook website; job advertisements from a national recruitment website or national print website that are in English and specify the salary arrangements for the advertised position; written advice from registered employer associations and/or unions; and, remuneration surveys generated across the relevant industry by a reputable organisation or body.
The Company has engaged the services of a specialist employment law/workplace law firm based in Perth, MDC Legal, to assist it demonstrate to the Tribunal that it meets the criteria in reg 2.72(15). The Tribunal acknowledges the prompt assistance of MDC Legal, especially in circumstances where the Tribunal initially made its request for advice in this regard in its hearing invitation of 25 February 2022 yet it appears, for the reasons set out at paragraph [17] above, that the Company delayed seeking professional advice until a week before this decision. It is evident to the Tribunal that the Company accepts the advice provided by MDC Legal in its letter dated 27 June 2022 and, on that basis, has requested that the representative forward the law firm’s advice to the Tribunal.
To determine the AMSR for the occupation, the Company accepts that the Restaurant Industry Award applies to the role of Cook nominated by the Company. MDC Legal has provided a very detailed consideration of the appropriate classification of the Company’s role of Cook under the Restaurant Industry Award and has advised the Company of the basis of its classification. Based on the considered analysis by MDC Legal, the Company accepts that the role of Cook is covered by Level 4 of the Restaurant Industry Award. On the basis that the Restaurant Industry Award applies, the AMSR for the role will be the annual earnings for an equivalent worker under the Restaurant Industry Award.
As noted above, there are no Australian citizens or permanent residents working in the Company’s business as a Cook. It currently employs a Subclass 457 visa holder in the role and, apart from the nominee Mr Pokharel, it also employs Mr Low as a Cook. On the basis that the role of Cook with the Company is covered by Level 4 of the Restaurant Industry Award, the MDC Legal opines that the AMSR would ordinarily be $46,774, being $899.50 (the minimum weekly rate for a Level 4 employee as set out in cl 18.1 of the Restaurant Industry Award) multiplied by 52 weeks. However, it notes that cl 20.2 of Award provides that an individual employee may agree with their employer to be paid an annualised salary, in which case the annualised salary must be at least 125% of the minimum weekly rate that would otherwise be applicable: cl 20.3 of the Restaurant Industry Award. Under an annualised salary arrangement, the minimum weekly rate of $899.50 for a Level 4 employee is increased to $1,124.38 per week which, multiplied by 52 weeks, is annualised to $58,467.50 per annum.
In summary, based on this advice the Company submits, and the Tribunal accepts, that the nominated position of Cook with Company is covered by Level 4 of the Restaurant Industry Award and that the AMSR for the position of Cook is $58,467.50. The Tribunal accepts that the AMSR for the occupation has been determined by the Company on advice from its employment lawyers MDC legal by reference to the relevant instrument, in this case, the Restaurant Industry Award.
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The TSMIT specified in s 6 of IMMI 18/033 is $53,900. Given the AMSR for the nominated occupation of Cook with the Company exceeds this amount, the Tribunal is satisfied that the requirement in reg 2.72(15)(d) of the Regulations is met.
As noted above, reg 2.72(15)(e) requires that the nominee’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion. Clause 20 of the Restaurant Industry Award provides for annualised salary arrangements. The Employment Agreement states that Mr Pokharel will be paid a salary of $58,467.50 per annum. It is submitted, and the Tribunal accepts, that Mr Pokharel’s annual earnings under the Employment Agreement will not be less than the AMSR: rather, his annual earnings equal the AMSR. The Tribunal accepts that the requirement in reg 2.72(15)(e) of the Regulations is met.
Further, the Tribunal is satisfied that Mr Pokharel’s annual earnings, excluding any non-monetary benefits, will be not less than the TSMIT. As such, the Tribunal is satisfied that the requirement in reg 2.72(15)(f) of the Regulations is met.
To determine whether the requirement in reg 2.72(15)(g) is met, the Tribunal is required to consider the Australian labour market conditions relevant to the occupation. The representative has provided evidence of 2 advertisements from Seek.com for Chefs/Cooks in Perth offering salaries of $55,000 – $64,999 per annum. The Tribunal has consulted the Jora website which indicates that the average annual market salary for a Cook in Perth is $55,000 - $60,000 per annum.[5] Further, the Indeed website indicates that the average base salary for a Cook in Perth is $57,922 per annum.[6] PayScale confirms that the current total pay for a Cook in Perth is $41,000 - $57,000.[7] Having regard to available evidence, the Tribunal is satisfied that there is no information before it which indicates that the AMSR is inconsistent with the Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirement in reg 2.72(15)(g) is met.
[5] Cook Salaries in Perth | Jora
[6] Cook salary in Western Australia (indeed.com)
[7] Cook, Restaurant Hourly Pay in Perth, Western Australia | PayScale
Based on the above findings, the Tribunal is satisfied that the cumulative requirements in reg 2.72(15) of the Regulations are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b) of the Regulations.
The Tribunal has had regard to the terms and conditions of the Employment Agreement. It accepts that the terms and conditions set out therein are the same as those that would apply to an Australian employee performing the same occupation of Cook and, further, that the terms and conditions also appear consistent with the Fair Work Act 2009. The Tribunal is therefore satisfied that reg 2.72(18)(a) of the Regulations is met.
There is no evidence before the Tribunal that the Company has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that reg 2.72(18)(b) of the Regulations is met.
As the requirements in both reg 2.72(18)(a) and reg 2.72(18)(b) of the Regulations are met, the Tribunal finds that reg 2.72(10) of the Regulations is met.
Labour market testing
Section 140GBA requires a person 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 – s 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 instrument IMMI 18/048. In addition:
·the nomination must be accompanied by the evidence specified in s 140GBA(5) and s 140GBA(6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) for nominations made on or after 12 August 2018;
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous 4 months and, if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; 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 of 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.
The Tribunal has considered whether the labour market testing condition applies in this case and whether:
1) it would be inconsistent with an international trade obligation specified in the relevant instrument under s 140GBA(1)(c) of the Act; or,
2) the nomination is subject to the major disaster exemption or the skill and occupational exemptions specified in the relevant instrument: s 140GBB and s 140GBC of the Act.
Having regard to the evidence before it, the Tribunal is satisfied that the labour market testing condition does not apply in this case as it would be inconsistent with an international trade obligation specified at the time of lodgement of the nomination on 16 January 2019. The relevant legislative instrument LIN 18/183 Determination of International Trade Obligations Relating to Labour Market Testing Instrument 2018 sets out 11 international trade agreements including, relevantly the General Agreement on Trade in Services (the GATS) at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organisation: s 6(d) of LIN 18/183. Mr Pokharel is a national of Nepal. Australia and Nepal are both signatories of the GATS.
The GATS contains a number of Annexures. Clause 4 of the Annex on Movement of Natural Persons confirms that the GATS member countries may apply measures to regulate the entry of natural persons into, or their temporary stay in, its territory and it also includes commentary on labour market testing conditions in some cases. Relevantly, cl 4 of Australia’s Schedule of Specific Commitments - Supplement 2 to the GATS dated 28 July 1995 sets out 4 categories of natural persons who are impacted. In brief, the categories are:
1)executives and senior managers;
2)independent executives;
3)service sellers based overseas who are sales representatives of a service supplier overseas but who are not engaged in making direct sales to the public or supplying services themselves; and,
4)specialists.
Relevantly, cl 4(d) provides that labour market testing is not required for specialists who have “specialised knowledge at an advanced level of a proprietary nature of a company’s operations and have been employed by the company for a period of not less than 2 years”.
Mr Winardi gave oral evidence at the Directions Hearing that, as part of the PappaRich global group, the Company’s recipes as well as its kitchen procedures involving food preparation and presentation are highly confidential. The Tribunal notes that the Employment Agreement contains extensive provisions in relation to Mr Pokharel’s acknowledgement that he has access to the Company’s ‘Confidential Information’ and ’Intellectual Property’ and that he is prohibited from disclosing Confidential Information to any person in any way including social media or removing Confidential Information from the Company’s workplace. The term ‘Confidential Information’ is defined to include supplier information including supplier identity, contact details, pricing, terms and conditions, terms of dealings and commercial relationships. The term ‘Intellectual Property is defined to include the Company’s processes and techniques.
Further, consistent with the terms of the PappaRich Franchise Agreement, the Company has agreed to ensure that all of the Company’s employees sign a contract of engagement which precludes them revealing or using confidential information or intellectual property during or after the period of their employment with the Company.
Mr Pokharel has worked as a Cook with the Company since October 2016, that is, for more than 5 years. During this time, he was sponsored for 18 months on a Subclass 457 visa by the Company. He had been working with the Company for more than 2 years when the Company’s nomination was lodged. Based on evidence provided, the Tribunal is satisfied that, as Mr Pokharel was employed by the Company for a period of at least 2 years prior to lodgement of the Company’s nomination on 16 January 2019, he was a specialist who had specialised knowledge at an advanced level of a proprietary nature of the Company’s operations as set out in cl 4(d) of Australia’s Schedule of Specific Commitments - Supplement 2 to the GATS.
Having regard to the evidence before it, the Tribunal is satisfied that the labour market testing condition does not apply in this case as it would be inconsistent with an international trade obligation in the GATS.
For these reasons, the labour market testing requirements in s 140GBA of the Act are not applicable in this case.
Nomination training contribution charge
Section 140ZM of the Act imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) of the Act in relation to a Subclass 457 or Subclass 482 visa holder or, relevantly, an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa) of the Act.
As the Company’s nomination was lodged on 16 January 2019, it is liable to pay a nomination training contribution charge.
Item 5(2) of the Migration (Skilling Australians Fund) Charges Regulations 2018 sets out the formula for calculating the amount due, which is the base amount prescribed in the legislation multiplied by the number of years of sponsorship. In this case, the Company’s business has an annual turnover of less than $10,000,000 and so the base amount is $1,200: this is consistent with Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018. The length of visa approval sought by the Company is 2 years. Therefore, the amount due is $2,400.
In response to the Tribunal’s request, the Company provided the Tribunal with a copy of Receipt No. 200019352673 dated 16 January 2019 issued by the Department for payment of the relevant training nomination charge in the amount of $2,400.
As evidence of payment of the training contribution charge has been provided, the requirements of s 140GB(2)(aa) of the Act are met.
For this reason, the requirement in s 140GB(2)(aa) of the Act is met.
Conclusion
For the cumulative reasons given above, the Company 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.
Katie Malyon
MemberATTACHMENT A - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
oOOo
ATTACHMENT B - Extracts from the Migration Act 1958
s.140GB Minister to approve nominations
(1) A person who is, or who has applied to be, an approved sponsor, or a person who is a party to negotiations for a work agreement may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or(b) a proposed occupation, program or activity.
(2) The Minister must approve a person’s nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC — the labour market testing condition under section 140GBA is satisfied; and
(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and
(ab) in any case—the person is an approved sponsor; and
(b) in any case — the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.(3) The regulations may establish a process for the Minister to approve a person’s nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.s.140GBA Labour market testing – condition
(1) This section applies to a nomination by a person, under section 140GB, if:
(a) the person is, or has applied to be, in a class of approved sponsors prescribed by the regulations; and
(b) the person nominates:(i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
(ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.
(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Labour market testing condition
(3) The labour market testing condition is satisfied if:
(a) the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and
(aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and
(b) the nomination is accompanied by:(i) evidence in relation to that labour market testing of a kind determined under subsection (6A); and
(ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person — information about those redundancies or retrenchments; and(d) having regard to that evidence, and information (if any), the Minister is satisfied that:
(i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.(4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.
(4A)Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.Evidence of labour market testing
(5) For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.
(6) Without limiting subsection (5), the Minister may determine the following:
(a) the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor;
(b) the method of any such advertising;
(c) the period during which any such advertising must occur;
(d) the duration of any such advertising.(6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:
(a) will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and
(b) will set out any skills or experience requirements that are appropriate to the position.(6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.
(6A) For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.
(6B) Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.
(6C) Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.Definitions
(7) In this section:
associated entity has the same meaning as in Part 2A of the regulations.
Australian permanent resident means an Australian permanent resident within the meaning of the regulations.
eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by another person if, at the time when the nomination is made:(a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and
(b) the person is employed in the agricultural sector by the other person (or an associated entity of the approved sponsor); and
(c) the temporary visa does not prohibit the person from performing that employment.
labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.s.140GBA Labour market testing – major disaster exemptions
(1) A person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection (2) of this section is in force in relation to the person.
(2) The Minister may, in writing, exempt a person from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that:
(a) an event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and
(b) the exemption is necessary or desirable in order to assist disaster relief or recovery.(3) In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following:
(a) the number of individuals affected;
(b) the extent to which the nature or extent of the disaster is unusual.(4) An exemption of a person under subsection (2):
(a) may be expressed to apply in relation to:
(i) a specified nomination by the person; or
(ii) a specified class of nominations by the person; and(b) must be expressed to apply to a particular person specified in the exemption rather than a class of persons, despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901.
(5) An exemption made under subsection (2) is not a legislative instrument.’
s.140GBC labour marketing testing – skill and occupational exemptions
Scope
(1) This section applies to a nomination by a person, under section 140GB, if the person nominates:
(a) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
(b) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination.
Skill and occupational exemptions(2) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:
(i) a relevant bachelor degree or higher qualification, other than a protected qualification;
(ii) 5 years or more of relevant experience, other than protected experience; and(b) the nominated occupation is specified for the purposes of this subsection under subsection (4).
(3) The person is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:
(i) a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification;
(ii) 3 years or more of relevant experience, other than protected experience; and(b) the nominated occupation is specified for the purposes of this subsection under subsection (4).
Legislative instrument(4) The Minister may, by legislative instrument:
(a) specify an occupation (or occupations) for the purposes of subsection (2); and
(b) specify an occupation (or occupations) for the purposes of subsection (3).(5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4).
Definitions(6) In this section:
AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003.
protected experience means experience in the field of engineering (including shipping engineering) or nursing.
protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing.oOOo
Attachment C – Extract from PAM in relation to caveats
4.6.1.8. Cooks (ANZSCO 351411) – Conditions 7 & 8
Caveats are in place for this occupation which exclude positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:
· fast food or takeaway food services;
· fast casual restaurants;
· drinking establishments that offer only a limited food service;
· limited service cafes;
· limited service pizza restaurants.
For further advice regarding how the above terms are defined, refer to section 4.7 Additional advice on hospitality positions and caveats.
This caveat is designed to ensure that in the context of this occupation, employer sponsored skilled visa programs continue to be used for skill level 3 cook positions only – that is, positions in a dining establishment that involve preparing, seasoning and cooking food.
It is not appropriate for use by individuals who will actually be undertaking the role of a Fast Food Cook (ANZSCO 851111), Food Trades Assistants NEC (ANZSCO 851299) and Kitchenhands (ANZSCO 851311), or for positions that can be performed with on-the-job training, or without the skills, qualifications or employment background specified in the ANZSCO dictionary.
Cooks, unlike Chefs, are less likely to operate independently in planning menus and sourcing produce, and are expected to spend the majority of their time preparing food on a daily basis.
If the nominated position is not determined to be in a limited service restaurant or be involved in mass production in a factory setting, further assessment may be warranted if the officer has concerns that a significant amount of the nominee’s time will be spent on routine support tasks in a food service environment (e.g. preparing ingredients, cleaning equipment, delivering food, taking orders, packing food and beverage trays, heating food items), rather than preparing and cooking food in a dining or catering establishment.
..
4.7. Additional advice on hospitality positions and caveats
There are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from employer sponsored visa programs where the position is based in a limited service restaurant.
A limited service restaurant, as outlined in the instrument, includes, but is not limited to, the following:
· fast food or takeaway food services;
· fast casual restaurants;
· drinking establishments that offer only a limited food service;
· limited service cafes including, but not limited to, coffee shops or mall cafes;
· limited service pizza restaurants.
Cook and chef positions are also excluded where they are involved in mass production in a factory setting.
This section explains how the above terms are defined under policy for the purposes of these caveats.
Note: Not related specifically to caveats, additional advice is also provided at the end of this section in terms of the differentiation between Cook and Chef positions.
4.7.1. Definitions
4.7.1.1 What is a fast food or takeaway service?
Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.
Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.
Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
4.7.1.2 What is a fast casual restaurant?
Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.
These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:
· do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;
· operate in chains or as franchises and are heavily advertised;
· offer streamlined menus similar to fast food establishments;
· offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
· do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,
· cater for special dietary needs unlike fast food establishments; and
· do not have a drive through facility.
Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below
4.7.1.3 Drinking establishments that offer only a limited food service
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya.
In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’Employer sponsored skilled visa programs are not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers).
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below.
4.7.1.4 Limited service cafes including a coffee shop or mall cafe
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programs are not considered appropriate to fill positions in cafés where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:
· is located in a mall;
· is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee) ;
· have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes “from scratch” in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café – see Distinguishing between full service and limited service cafés/restaurants below
4.7.1.5 Limited service pizza restaurant
Nominations can be received for the occupations of cook, chef and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a take-away pizza service with limited other menu items and/or only limited table services. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.
Employer sponsored skilled visa programmes are not considered appropriate to fill positions in pizza restaurants where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Under policy, factors adding weight to a finding that an eating establishment is a limited service pizza restaurant include that the restaurant:
· does not serve non-pizza related items;
· has minimal onsite seating, with take-away the main focus of the business;
· clients pay at the counter;
· clients eat pizza from pizza boxes even if on the premises.
By contrast, full service pizza restaurants are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.
Note: additional guidance is provided below in terms of factors that add weight to an eating establishment being considered a fast casual restaurant as opposed to a full service restaurant or café– see Distinguishing between full service and limited service cafés/restaurants.
4.7.1.6 What is mass production in a factory setting
An additional caveat applies to the occupations of cook and chef which excludes positions involved in mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.
Cooks are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.
Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.
If a nominated position for a Cook or a Chef is based in a factory setting, officers will need to check whether or not this additional caveat applies.
4.7.2. Distinguishing between full service and limited service cafés/restaurants
The sections below are designed to assist officers to determine whether the nominee will be based in a restaurant or café, or in one of the locations that is specifically excluded via a caveat on the occupation listed in the relevant legislative instrument.
Officers will need to make an assessment as to the location of the nominated position, based on the individual circumstances of the case and taking into account all the material available in relation to how the business actually operates. The factors outlined below are considered critical in terms of distinguishing between full service and limited service café/restaurants.
Note:
· The key factors are the way in which the food is ordered, served and consumed, not the quality of the food.
· If a food service business operates through a chain or franchise arrangement, it is possible that some outlets will be fast food or takeaway businesses while others are cafes or restaurants. It is therefore important for officers to assess this issue on a case by case basis. In this situation, officers also need to ensure that any supporting evidence provided, relates to the specific outlet that is the subject of the nomination, rather than another premises in the chain.
4.7.2.1. Factors supporting classification as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:
· how the business is marketed to the public
· the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available
· meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared
· a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises
· table service is provided – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill)
· customers pay after eating
· the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service
· the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning
· if the menu is limited, there is a focus on organic or specialty ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment
· the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items
· the business has a full commercial kitchen and significant food storage facilities for fresh ingredients
· the business has had their performance recognised via restaurant industry awards
· employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery
· where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.
4.7.2.2. Factors supporting classification not as a restaurant or café
Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:
· the business does not offer full table service
· the business is a well-known fast food or fast casual restaurant chain
· the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising
· the business is primarily a coffee shop
· operate a franchise or restaurant chain, where different outlets are largely identical in design
· the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;
· the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)
· the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).
· the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for
· the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food
· the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls
· customers are required to order at a counter and pay before eating
· limited seating and/or only communal tables shared with other business is provided
· meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)
· meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)
· reservations are not required or provided for
· food is distributed from a central location
· food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)
· if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue
· employees of the business are covered by the Fast Food Industry Award
· the business has had their performance recognised via fast food industry awards.
Officers are reminded that the above considerations are for guidance only and are not intended to be an exhaustive list. Officers must consider, on an individual basis, all circumstances of which they are aware, or should be aware, and which are relevant to the determination, and must not apply these factors inflexibly.
4.7.3. Distinguishing between cook, chef and kitchen hand positions
It can be important for officers to determine whether a particular position is in fact a skill Level 2 Chef (ANSZCO 351311) or a skill level 3 Cook (ANZSCO position), particularly in the context of the TSS visa program where different visa stay periods apply.
As outlined in ANZSCO, the qualifications and/or experience required for these positions are different. The occupation of Chef requires a diploma or higher qualification, whereas the occupation of cook requires only an AQF Certificate IV or an AQF Certificate III including 2 years of on-the-job training.
The tasks that would be undertaken by individuals in these occupations also differ. Tasks for Cooks include:
· examining foodstuffs to ensure quality
· regulating temperatures of ovens, grills and other cooking equipment
· preparing and cooking food
· seasoning food during cooking
· portioning food, placing it on plates, and adding gravies, sauces and garnishes
· storing food in temperature controlled facilities
· preparing food to meet special dietary requirements
· may plan menus and estimate food requirements
· may train other kitchen staff and apprentices
Tasks for Chefs include:
· planning menus, estimating food and labour costs, and ordering food supplies
· monitoring quality of dishes at all stages of preparation and presentation
· discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
· demonstrating techniques and advising on cooking procedures
· preparing and cooking food
· explaining and enforcing hygiene regulations
· may select and train staff
· may freeze and preserve foods
Under policy, factors that may be relevant to an assessment that the position is a Chef position include:
· the primary role of the position is managing a kitchen, with some limited, specialised cooking tasks;
· there is at least one cook that the nominated chef will supervise;
· the nominated position is in a restaurant environment;
· nominee has a diploma or higher qualification;
Under policy, factors that may be relevant to an assessment that the position is a Cook position include:
· the organisation only has a single person performing the “cooking” function, the relevant occupation is likely to be that of a cook
oThis is because in these circumstances, it is likely that the person will spend most of their time on cooking, rather than managerial tasks. If the employer, believes that a stand-alone cooking role is that of a chef, the onus is on them to provide justification.
· Tasks are performed at a lower level of skill e.g. a cook is likely to instruct a kitchen hand on hygiene and preparing ingredients rather than demonstrate how a particular dish is prepared to a group of cooks.
Note: officers are also encouraged to take care to ensure that overseas workers are not working in lower skilled positions such as Kitchenhands (ANZSCO 851311) that could be performed by an Australian with secondary education and/or minimal on the job training. Tasks such as the following are not considered appropriate tasks commensurate with the occupation of Cook (351411):
· taking orders and receiving payment from clients;
· washing, measuring and mixing foods for cooking
· arranging delivery of prepared food of beverages
· cleaning kitchens, food preparation areas and sculleries
· cleaning cooking and general utensils used in kitchens and restaurants
· transferring, weighing and checking supplies and equipment
· assembling and preparing ingredients for cooking, and preparing salads, savouries and sandwiches
· packing food and beverage trays for serving, or
· cooking, toasting and heating simple food items.
oOOo
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