Sabcha Pty Ltd (Migration)

[2024] AATA 2441

Sabcha Pty Ltd (Migration) [2024] AATA 2441 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sabcha Pty Ltd

REPRESENTATIVE:  Mr Daniel Mattheus Estrin

CASE NUMBER:  2116185

HOME AFFAIRS REFERENCE(S):          BCC2020/1811171

MEMBER:SM Michael Cooke

DATE:28 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2024 at 8:41am

CATCHWORDS  
MIGRATION – nomination – Temporary Residence Transition nomination stream – there was adverse information concerning the applicant which could not be disregarded – conclusions reached from the FWO's investigation of Sabcha and its related companies are significant – breaches of Commonwealth labour law – not reasonable to disregard adverse information – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 140M, 245AR, 359
Migration Regulations 1994, rr 1.13, 1.15, 2.79, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 June 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because there was adverse information concerning the applicant which could not be disregarded.

5. The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s spokesperson (Mr Ankur Sehgal) and their industrial relations consultant (Mr. Lazar Krstic). The applicant’s representative Mr Estrin also attended the hearing in relation to the review.

6. The applicant was represented in relation to the review.

7. On 27 May 2024 the applicant’s representative tendered a document for the Tribunal’s edification which it had submitted to the FWO. This document was regarding its investigative conclusions into the matter of Sabcha Pty Ltd (the applicant nominator).

8. It accompanied this document with the following email to the Tribunal:

   Dear Registrar

   Please see below and attached from the Applicant:

   Please see attached response by Hitch to FWO shows that even if we agree with FWO and ECA did not apply they have grossly doubled the under-payment amount. This matter is so complicated that FWO themselves have made errors.

   • Even if we agree with FWO, ECA applied to below employees who worked at Sabcha restaurants (see clause 4.1 of Hitch letter) so ECA 100% applied to them and no wrong-doing on their part:

   • Piyatida Un-a-Nan worked at Norwest – this is a Sabcha owned restaurant that FWO is also agreeing with and supported by ATO/ BAS/ P&L/ Tax returns/ ASIC records.

   • Manali Bhatt worked at Head Office and was paid fairly for work done. No ECA ever applied so she should not be denied any visa as 0 under-payments anything.

   • Sanjib Gurung worked at Rouse Hill – this is a Sabcha owned restaurant that FWO is also agreeing with and supported by ATO/ BAS/ P&L/ Tax returns/ ASIC records.

   Finally, Sabcha has made numerous amends since January 2022:

   • Paying as per Restaurant Award including Weekends penalty/ Public Holidays penalty / Broken shifts/ over-time/ personal carer’s leave etc. Also, substantially increasing wages: In fact all managers are now paid between $70 K - $80K so way over their minimum rates for 38 hours including entitlements.

   • Keeping all wage and employee records using an outsourced software provider – TANDA linked with Accounting/ Payroll provider – XERO. Everything is provided electronically and records are available at a moment’s notice.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in TRT which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    No adverse information known to Immigration – reg 5.19(4)(b)

11. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

12. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·            has contravened a law of the Commonwealth, a State or a Territory, or

    ·            is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

    ·            has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

    · has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or

    ·            has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

13. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

    ·            they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or

    ·            one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or

    ·            a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or

    ·            they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,

    ·            one is or was able to exercise influence or control over the other, or

    ·            a third person is or was able to exercise influence or control over the both of them.

    Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

14. On 2 March 2023 the Tribunal issued an Invitation to the applicant pursuant to s.359A of the Act as follows:

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION— SABCHA PTY LTD

    I am writing on instruction from the Member conducting your review, in relation to the applications for review made by Sabcha Pty Ltd in respect of decisions to refuse business nomination applications.

    Invitation to comment on or respond to information

    In conducting the review, we are required by the Migration Act 1958 to invite Sabcha Pty Ltd to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    · The Tribunal has become aware of 'adverse information' concerning SabchaPty Ltd.

    · The Tribunal has evidence of an investigation into the nominator company by the Fair Work Ombudsman. The Tribunal is unaware if the investigation has been completed or the final outcome.

    The relevance of this information is that it might indicate the nominator firm does not meet the requirements for approval as a nominator. Regulations 2.59(g) and 5.19(4)(b) require that 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. The terms 'adverse information' and 'associated with' are defined in regs 1.13A and 1.13B.

    If the nominator were found not to meet this criterion, the Tribunal may be required to affirm the refusal of the five applications for review made by Sabcha Pty Ltd. Sabcha Pty Ltd is invited to give comments on or respond to the above information inwriting.

15. The applicant responded to the Invitation pursuant to s.359A of the Act on 16 March 2023 (through its representative) as follows:

    SABCHA PTY LTD — Submission in response to invitation to comment

    a. We continue to act for Sabcha Pty Ltd (Sabcha) in relation to this application.

    b. Sabcha Pty Ltd operates multiple businesses across Australia, trading as P'Nut Street Noodles.

    BACKGROUND

16. A previous decision by the Australian Border Force (ABF) (file number OPF2020/11612), dated 9 July 2021 found that Sabcha had not met its sponsorship obligations under Regulation 2.79 of the Migration Regulations 1994 (Cth) (Regulations) and decided under s140M of the Migration Act 1958 (Cth) to bar Sabcha as a sponsor.

17. That decision has now been set aside by this Tribunal, dated 21 December 2022. Sabcha now seeks for this Tribunal to substitute a decision approving Sabcha as a standard business sponsor.

18. On 2 March 2023, the Tribunal wrote to the applicant asking for comment, stating as follows:

19. The Tribunal has become aware of 'adverse information' concerning Sabcha Pty Ltd. The Tribunal has evidence of an investigation into the nominator company by the Fair Work Ombudsman. The Tribunal is unaware if the investigation has been completed or the final outcome.

20. The relevance of this information is that it might indicate the nominator firm does not meet the requirements for approval as a nominator.

21. Regulations 2.59(g) and 5.19(4)(b) require that there is no adverse information known to Immigration about the applicant or a person associated with the applicant, or it is reasonable

22. to disregard such information. The terms 'adverse information' and 'associated with' are defined in regs 1.13A and 1.13B.

23. If the nominator were found not to meet this criterion, the Tribunal may be required to affirm the refusal of the five applications for review made by Sabcha Pty Ltd.

24. Sabcha Pty Ltd is invited to give comments on or respond to the above information in writing.

    Response

25. The investigation by the Fair Work Ombudsman (FWO) relates to the same subject matter as before the Tribunal in case 2109599, namely allegations by former employees that the Applicant's Employee Collective Agreement (ECA) does not apply to certain employees within the P'Nut Noodle restaurant group but rather the relevant modern Award. As a result, it is alleged that those affected employees have not been paid or been provided their rates, allowances, benefits and/or entitlements during various periods.

26. The Applicant contends that these are the same persons who made initial complaints which led to the Australian Border Force's actions.

27. We are instructed by the Applicant's solicitors in the FWO matter, Hitch Advisory, that the FWO's investigation is ongoing and a final outcome or determination has not been issued.

28. The Applicant has been assisting the Ombudsman with its investigations during this time but has, at all times, denied any non-compliance with Fair Work legislation and maintains that the ECA was applicable to the Applicant and all staff engaged under the P'Nut Noodle restaurant group.

29. While the investigation falls within the scope of subregulation 1.13A(2) of the Regulations, it should be disregarded because:

    a. there has been no final outcome and as such the applicability of the ECA stands;

    b. without a finding of any wrongdoing under employment law, it would be unreasonable to deny the Applicant the ability to sponsor employees under the migration framework;

    c. the matters relating to the ECA were ventilated and considered at length by the Tribunal in case 2109599; no breaches were found;

    d. the nominees who are awaiting determinations on their permanent residence applications would be significantly prejudiced and lose their ability to have a chance at permanent residence if the information was not disregarded in the context of Regulation 2.59.

30. The applicant meets the relevant criteria for approval as a standard business sponsor under Regulation 2.59 and the relevant criteria for 2.60S of the Regulations.

    RECOMMENDATION

31. The Tribunal should find that Sabcha meets the criteria for approval as a standard business sponsor under Regulation 2.59 of the Regulations.

32. As Sabcha is now no longer barred from sponsoring, and meets the criteria, it seeks for this Tribunal to substitute a decision finding Sabcha as an approved standard business sponsor.

33. The Tribunal sought further information on the case in correspondence with the FWO. On 19 October 2023 the Tribunal received the following information from the FWO:

    Authorised Release of Information

34. I refer to your email requests made to the Fair Work Ombudsman (FWO) for information in relation to Sabcha Pty Ltd, ABN: 32 103 975 122 (Employer) to determine its compliance with the Fair Work Act 2009 (Cth) (FW Act).

35. The FWO reserves the right to refuse access to requested information unless it is legally obliged to release it.

36. The FWO makes decisions to release documents upon request according to the FWO Information Access Policy. Specifically, the Policy provides for the: 'discretionary /administrative release of information under section 718 of the FW Act which gives the FWO power to release information when it is necessary or appropriate to do so.'

37. 34. Section 718(2) of the FW Act provides:

38. 35. The Fair Work Ombudsman may disclosure, or authorize the disclosure of, the information if

    (a) that it is necessary or appropriate to do so in the course of performing functions or exercising powers under this Act; or (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or Territory.

39. Accordingly, I have made the decision to release a redacted Findings of Contraventions letter issued to the Employer on 18 October 2023 (Redacted CL) pursuant to ss718(2)(b) of the FW Act. The names of the Employees have been redacted for privacy reasons and the Redacted CL is attached to this email.

40. The contraventions identified in the Redacted CL are the determinations made by the FWO in its investigation of the Employer's compliance with relevant Commonwealth workplace laws, including the FW Act. The Employer has until 1 November 2023 to disagree with the findings and/or to provide any further information and evidence for assessment.

41. The document released by the FWO to the Tribunal (and the applicant's principal) stated as follows:

    FINDINGS OF CONTRAVENTION

42. - (issued under Regulation 5.05 of the Fair Work Regulations 2009)

43. Dear Mr Sehgal,

44. I refer to the investigation conducted by the Fair Work Ombudsman (FWO) into Sabcha Pty Ltd (Employer) and the 11 restaurants trading as `P'Nut Street Noodles' in New South Wales and Queensland commencing 15 December 2020 (Investigation). The Employer employed employees to work in restaurants owned and operated by the following companies (collectively, P'Nut Companies):

    · Nirvana Norwest Pty Ltd, ABN: 24 629 952 307;

    · Rama Rouse Hill Pty Ltd, ABN: 19 629 979 095;

    · Buddha BaImain Pty Ltd, ABN: 67 629 947 262;

    · Dharma Dee Why Pty Ltd, ABN: 51 629 949 631;

    · Win Winsor Pty Ltd, ABN: 33 629 980 703;

    · Sonmi Pty Ltd, ABN: 42 621 630 340;

    · Senghal Pty Ltd, ABN: 27 122 754 198;· Raj Rock Pty Ltd, ABN: 12 629 979 442 (deregistered 11 March 2023);

    · Sha Sydney Olympic Park Pty Ltd, ABN: 21 629 978 230 (deregistered 11 March 2023);

    · Zen Zetland Pty Ltd, ABN: 23 629 980 221 (deregistered 11 March 2023); and

    · Karma Kawana Pty Ltd, ABN: 60 629 950 401 (deregistered 5 November 2022).

45. The FWO is a federal regulatory agency that enforces compliant, productive and inclusive workplaces, and does not act for either side in workplace disputes.

    Investigation Findings

46. I am writing to let you know the outcome of the Investigation.

47. The Investigation examined the employment of the Employer's employees during the period from 26 November 2018 to 30 May 2021 (Assessment Period), to determine compliance withthe Fair Work Act 2009 (Cth) (FW Act); the Fair Work Regulations 2009 (0th) (FW Regs); and the Restaurant Industry Award 2010 (RIA 2010) and Restaurant Industry Award 2020 (RIA 2020) (collectively the Award).

    Contraventions

48. Based on information and evidence obtained by the FWO during the investigation, I have found that during the Assessment Period, the Employer contravened the following provisions of the FW Act and FW Regs (Contraventions), in relation to the employees set out in Appendix A (Employees). Details of the Contraventions are set out in Appendix B. Section 45 of the FW Act — by failing to comply with the following terms of the Award:

    1. clauses 20.1 of RIA 2010 and 18.1 of RIA 2020 — by failing to pay the minimum rate of pay specified for a full-time and/or part-time employee according to their classification and their ordinary hours worked Monday to Friday;

    2. clauses 34.2(a)(i) of RIA 2010 and 24.2(c) of RIA 2020— by failing to pay the additional Late Night penalty amount specified for each hour or part of an hour worked between 10:00pm and midnight, Monday to Friday (in addition to the minimum rate of pay for ordinary hours worked);

    3. clauses 24.2 of RIA 2010 and 21.3 of RIA 2020— by failing to pay full-time and/or parttime employees who have a broken workday a split shift allowance for each separate work period of two hours or more;

    4. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020— by failing to pay full-time and/or parttime employees 125% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a Saturday;

    5. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020— by failing to pay full-time and/or parttime employees 150% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a Sunday;

    6. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020 — by failing to pay full-time and/or parttime employees 225% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a public holiday;

    7. clauses 33 of RIA 2010 and 23 of RIA 2020 — by failing to pay overtime to a full-time and/or part-time employee who worked hours entitled to an overtime payment in accordance with the percentage amount applicable for the period of overtime hours worked; the following other sections of the FW Act:

    8. sections 90 of the FW Act — by failing to pay annual leave, at the employee's base rate of pay when an employee took a period of paid annual leave and/or when an employee's employment ended, at the amount that would have been payable to them had they taken that leave (including leave loading as per clauses 35.2(b) of RIA 2010 and 25.3 of the RIA 2020);

    9. section 535(1) of the FW Act — by failing to make and keep for 7 years records of the kind prescribed by the following regulations of the FW Regs in relations to its employees:

    10. section 536(1) of the FW Act — by failing to issue pay slips within one working day of paying an amount to an employee in relation to the performance of work for the Employer;

    11. section 536(3) of the FW Act — by issuing pay slips to employees the Employer knows is false or misleading, specifically those employees receiving wages paid both as a cash payment and an electronic funds transfer payment;

    12. section 718A of the FW Act — by providing a document to a Fair Work Inspector knowing or being reckless as to whether the document is false or misleading;

    13. section 712(3) of the FW Act — by failing to comply with the Notice to Produce served to the Employer on 18 June 2021;

    14. section 324 of the FW Act — by making an unauthorised deduction from the employee's pay for their uniforms that is not authorised by the Award, in writing or principally for the employee's benefit;

    15. section 325(1) of the FW Act — by requiring an employee to spend or pay the Employer an amount of the employee's money for their work uniforms or to invest in the business;

    16. section 96(2) of the FW Act — by failing to accrue progressively during a year of service an employee's entitlement to personal/carer's leave according to the employee's ordinary hours of work;

    17. section 99 of the FW Act — by failing to pay an employee paid personal/carer's leave at the employee's base rate of pay for the period of personal/carer's leave taken in relation to the employee's ordinary hours of work in the period.

    Underpayments

1. As a result of the contraventions listed above, I have determined that the Employer has underpaid the Employees a total of $ 1,150,992.85 The total amounts owed to each affected employee are set out in Appendix C (and per contravention in Appendix B).

   Evidence considered

2. The evidence I have relied upon in reaching the findings set out in this letter is set out in Appendix D. During the Investigation the FWO offered you, Mr Sehgal an opportunity to voluntarily participate in an electronically recorded interview to provide your and the Employer's version of events and respond to identified allegations. That offer was declined.

   Required Action

3. The Employer is required to rectify the Contraventions identified in Appendix B by paying the underpaid employees the amounts listed in the 'Total Underpayment' column of Appendix C (less applicable taxation) plus any additional superannuation contributions payable in relation to those amounts.

4. The Employer must provide the FWO with evidence of the payments made to each of the underpaid employees, including a breakdown of net and gross amount, tax deductions and superannuation contributions.

5. The Employer must advise the FWO in writing of the actions taken by the Employer to comply with the required action by 20 December 2023.

6. Please note that you or the Employer may be liable to a civil remedy for giving false or misleading information or producing false or misleading documents. It is also a serious offence under the Criminal Code (Cth).

   Our role and helpful resources

7. For information about how we deal with workplace disputes see our Compliance and enforcement policy, available at >

   Our website also has tools to help you understand and comply with your obligations. These include:

   · My Account to save all your information in one place and get priority support when you need it;

   · Templates and checklists to make record keeping easy; and

   · Online learning centre to learn the basics and get new skills. Enforcement action

8. It is important for you to note the FWO may take enforcement action. Efforts by the Employer to correct the contraventions will be considered in deciding whether or not to take enforcement action, and the nature of any such enforcement action. Such enforcement action may include commencing proceedings against the Employer and/or relevant persons who may be involved in the contraventions (including you) to recover outstanding amounts owed to employees, to seek pecuniary penalties against the Employer and/or relevant persons.

9. The maximum penalties for each contravention occurring during the Assessment Period are up to $63,000 for a body corporate such as the Employer, and $12,600 for an individual, such as you.

10. Higher penalties for serious contraventions may apply where an employer knowingly contravenes certain Commonwealth workplace laws, and this conduct forms part of  a systematic pattern of conduct in relation to one or more persons. The maximum penalty a court may impose for a serious contravention is $126,000 for an individual and $630,000 for a body corporate per contravention.

    Disagreeing with the findings

11. If you do not agree with the findings, please write to me by 1 November 2023, with details of each finding disputed and evidence to support your claims. I will review any additional evidence you provide.

12. On 22 December 2023 the FWO released further communication with Hitch Advisory to the Tribunal as follows:

    Dear Mr Krstic,

    The Office of the Fair Work Ombudsman (OFWO) refers to your letter dated 6November 2023 (Response Letter) responding to the Findings of Contravention letter issued by the OFWO on 18 October 2023 (Contravention Letter) to your client, Sabcha Pty Ltd ABN: 32 103 975 122 (Sabcha) and its director, Mr Ankur Sehgal.

    The Contravention Letter communicates the outcome of the OFWO's investigation and provides Sabcha and Mr Sehgal the opportunity to respond to the allegations being made by the OFWO. This letter provides further information and responses to the Response Letter.

    The Response Letter reiterates Sabcha's position that the Sabcha Pty Ltd Employee Collective Agreement (ECA) was the appropriate industrial instrument covering and applying to Sabcha and the Employees (as identified in Appendix B to the Contravention Letter) during the Assessment Period. The Response Letter notes the previous correspondence between Sabcha and the OFWO regarding industrial instrument coverage, and requests further information in respect of the OFWO's position. The Response Letter also seeks further information more generally on the contraventions set out in the Contraventions Letter.

    By way of general comment, we consider that sufficient information has been provided to explain the substance and basis of the contraventions set out in the Contravention Letter, particularly having regard to the fact that Sabcha is required to maintain its own records in respect of the matters raised in the Contravention Letter.

    However, in the interest of cooperation and with a view to clarifying the issues in dispute, we set out below a detailed response to the issues raised in the Response Letter. If you consider that any of our findings or calculations are incorrect, we invite you to produce to us an explanation of your view together with supporting evidence.

    Industrial instrument Coverage

13. It is apparent from the Response Letter that Sabcha disagrees with the findings regarding industrial instrument coverage.

14. The OFWO's position on industrial instrument coverage was communicated in a letter to Legal Vision dated 9 May 2022 (attached) and most recently in the Contravention Letter. However, further information on the OFWO's position is set out below:

    · The ECA was lodged with the Workplace Authority as AC311353 on 29 November 2007, and operated from that date with a nominal expiry date of 29 April 2009. During the Assessment Period (as defined in the Contravention Letter), the ECA continued to operate as a collective agreement-based transitional instrument under the Fair Work 2009 (Cth) (FW Act). It is worth noting that, in any case, the ECA would have automatically terminated (or 'sunset') on 7 December 2023, unless the necessaryextension applications were made to the Fair Work Commission.

    · The relevant provision within the ECA which relates to coverage is clause 1, which states: "This agreement applies to employees working in Sabcha Pty Ltd restaurants and take away shops as Kitchen hand, Cook/Server, and Head Chef/Managers."

    · Sabcha employs staff to work in eleven different restaurants trading as `P'Nut Street Noodles' in various locations in New South Wales (NSW) and Queensland. The eleven P'Nut Street Noodles restaurants are owned and operated by other companies; the names and Australian Business Numbers of each of those other companies and the relevant restaurant those companies operate are set out in the OFWO's letter to Legal Vision dated 9 May2022. None of these companies are related to Sabcha within the meaning of s 50 of the Corporations Act 2001 (Cth).

    · The principles of interpretation of industrial instruments were summarised by the Full Court in WorkPac Pty Ltd v Skene (2018) 362 ALR 311, which stated at [197] that:

    "The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose...": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J)."

    · The OFWO understands that Sabcha's position is that the relevant words in clause1 of the ECA,"Sabcha Pty Ltd restaurants and take away shops", are intended to include each of the P'Nut Street Noodles branded restaurants, notwithstanding that they are owned and operated by other companies, unrelated to Sabcha. However, there is nothing in the ECA — or in the ordinary meaning of the words used in clause 1 — which would indicate such an intention. The ECA does not mention P'Nut Street Noodles, any business names, or any other entities (aside from Sabcha).

    · There is also nothing in the context of the ECA that would support your proposed interpretation of the ECA. The documents submitted to the Workplace Authority in support of the ECA at the time of lodgement mention the relevant NSW pre-modern award, being the Restaurants & Employees State Award, and made no reference to P'Nut Street Noodles branded restaurants or companies other than Sabcha.

    · Furthermore, the ECA was created pursuant to section 327 of the Workplace Relations Act 1996 (Cth) (WR Act) (now repealed), which provided that: "An employer may make an agreement (an employee collective agreement) in writing with persons employed at the time in a single business (or part of a single business)".

    The term "single business" is defined in section 322(1)(a) to mean: "a business, project or undertaking that is carried on by an employer". Sabcha (the employer) does not own,3 operate or carry on the P'Nut Street Noodles restaurants. Therefore, the ECA cannot apply to those businesses.

    · Further, in considering the meaning of the words "employees working in Sabcha Pty Ltd restaurants and take away shops", courts will generally strive to give words work to do (see James Cook University v Ridd (2020) 382 ALR 8 at [72]). Given that "Sabcha Pty Ltd" cannot be extracted or read separately and that the phrase must begiven a commercial and practical meaning, it needs to be read as "restaurants and take away shops" of "Sabcha Pty Ltd", or in other words "restaurants and take away shops" owned and/or operated by "Sabcha Pty Ltd".

    · Accordingly, the ECA can only apply to employees "working in" restaurants and take away shops owned and/or operated by Sabcha and who worked as a Kitchen hand, Cook/Server, or Head Chef/Manager. The OFWO is of the view that the Restaurant Industry Award 2010 (2010 Award) and, from the first full pay period on or after 29 May 2020, the Restaurant Industry Award 2020 (2020 Award) (collectively, the Awards) applied to and covered the Employees because:

    · The Awards cover "employers throughout Australia in the restaurant industry" (clause 4.1 of the Awards) and "their employees in the classifications listed in Schedule B (clause 4.1 of the 2010 Award) or "employees (with a classification defined in Schedule A" (clause 4.1 of the 2020 Award).

    · The Awards provide that this includes any employer which supplies labour on an on-hire basis in the industry (clause 4.5 of the 2010 Award and clause 4.3 of the 2020 Award). This captures Sabcha's supply of labour to the P'Nut Street Noodles restaurants.

    · The Awards provide that 'restaurant industry' means "restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by arestaurant business." (clause 3.1 of the 2010 Award and clause 4.2 of the 2020 Award).

    Classification of Employees

15. In response to the request for further information about how the OFWO classified the Employees under the Awards:

    · the OFWO reviewed the position descriptions, rosters and other employment records provided by Sabcha in relation to the duties performed by each Employee;

    · the duties performed by each Employee were assessed against the duties and training requirements for each classification level under Schedule B of the 2010 Award and Schedule A of the 2020 Award;

    · in some cases, evidence of any relevant qualifications required to confirm a classification level were sought and obtained (e.g. Hospitality Management or Commercial Cookery qualifications). If evidence of relevant qualifications was not available, then the relevant Employees were assessed as not having the relevant qualification and classified accordingly.

16. In summary, each Employee was assessed and assigned a classification based on the duties that Employee performed according to their role title, position descriptions (as provided by Sabcha), and their relevant qualifications.

17. If Sabcha does not agree with the OFWO's assessment in respect of any of the classifications, the OFWO invites Sabcha to provide further information and evidence for assessment.

    Underpayments

18. The OFWO has prepared the attached calculations to assist Sabcha in assessing the quantum of the alleged allegations identified as contraventions in paragraphs 1 to 8 and 17of the Contravention Letter.

19. These calculations identify:

    · the minimum entitlement and rate of pay applicable in each pay period and for each classification under the Awards;

    · the relevant dates/days on which the Employees are alleged to have worked in respect of each minimum entitlement;

    · the hours the Employees are alleged to have worked in respect of each minimum entitlement;

    · the amounts paid to each Employee in respect of each minimum entitlement; and

    · finally, the amounts underpaid to each Employee in respect of each minimum entitlement.

20. This calculation file is located on a password encrypted USB contained with this letter. The password will be sent by email to you after emailing to confirm you have received the USB.

21. In respect of the underlying data which inform the calculations, the OFWO used the primary source data (as set out in Appendix D to the Contravention Letter) in Sabcha's own pay records, timecards, and rosters, as well as contemporaneous notes of hours worked, and cash payment receipts.

22. Furthermore, Sabcha admits that it did not keep timesheets during the Assessment Period and/or that its record keeping practices were below the standard required (in the letter to the OFWO from Legal Vision dated 27 August 2021 and in the Response Letter). As such, where necessary to fill gaps in Sabcha's data, the OFWO used alternative evidence obtained during the investigation such as photos taken of timesheets, cash payment receipts, Microsoft Excel rosters and contemporaneous notes to identify the days and hours worked by, and the amounts paid to, some of the Employees.

23. If Sabcha does not agree with the OFWO's calculations, the OFWO invites Sabcha to provide further information and evidence for assessment.

    Breaches of the FW Act

24. In response to the request for further information about the allegations in paragraphs 10 to16 of the Contravention Letter:

    · Paragraph 10 alleges that during the Assessment Period, Sabcha gave theEmployees pay slips, which it knew were false or misleading, in contravention ofsection 536(3) of the FW Act. The OFWO provides the following additionalinformation:

    o During the Assessment Period, Mr Sehgal instructed the following managers to make Cash Payments (as defined in the Contravention Letter) to Employees on Sabcha's behalf and provided those managers with 'cash envelopes' to distribute the Cash

    Payments:

    o took 49 photographs of 'cash payment receipts' (Figure #3, Appendix A) that she obtained after making Cash Payments to Employees on Sabcha's behalf, as instructed by Mr Sehgal.

    o Sabcha gave the Employees pay slips which did not record these Cash Payments.

    For example, for the pay period 2 Dec 2019 to 8 Dec 2019 (Figure 1 & 2, Appendix A), (on Sabcha's behalf) gave and Cash Payments which were not recorded in the relevant pay slips.

    o These pay slips were false and/or misleading because they did not include the hourly rate paid in cash, the number of hours the employee was paid for in cash, or the total amount of the Cash Payment pursuant to regulation 3.46(3) of the Fair Work Regulations 2009 (Cth). The attached calculations set out, based on the photographed cash payment receipts, the amounts paid in cash (in column BA), the relevant pay week (applicable row lining up with column BA) and the relevant Employee to whom these Cash Payments were made.

    o Sabcha (through Mr Sehgal) knew that the pay slips did not include the information about the Cash Payments because Mr Sehgal instructed the managers to make the Cash Payments, and approved the pay slips which he knew were false and/or misleading because they did not record the Cash Payments.

25. Paragraph 11 alleges that during the Assessment Period, Sabcha failed to give some of the Employees pay slips within one working day of paying an amount to those Employees (or at all), in contravention of section 536(1) of the FW Act. The OFWO provides the following additional information:

    o During the Assessment Period, Sabcha paid only in cash for the following weeks:

    · 11 May to 17 May 2020;

    · 18 May to 24 May 2020;

    · 25 May to 31 May 2020;

    · 1 Jun to 7 Jun 2020;

    · 8 Jun to 14 Jun 2020;

    · 15 Jun to 21 Jun 2020; and

    · 22 Jun to 28 Jun 2020.

    o Sabcha did not give a pay slip at all for the these pay periods and only paid her by way of Cash Payments, as evidenced by the 'cash payment receipts'.

    o Sacha paid other Employees only in cash and failed to provide them with a pay slip.

    · Paragraph 12 alleges that:

    o on 12 February 2021, in response to NTP1, Sabcha gave Fair Work Inspector a document titled 'Payroll Advice report;

    o on 30 July 2021, in response to NTP2, Sabcha gave Fair Work Inspector a document titled 'Payroll Advice report';

    o the Payroll Advice reports were false and/or misleading because they did not contain any data in relation to the Cash Payments; and

    o at the time the Payroll Advice reports were provided, Sabcha knew or was reckless as to whether, the Payroll Advice reports were false and/or misleading because Sabcha had (through Mr Sehgal) given the Employees the Cash Payments.

    • The OFWO provides the following additional information:

    o at the time the Payroll Advice reports were provided, Sabcha (through the knowledge of Mr Sehgal) knew, or was reckless as to whether, the Payroll Advice reports were false and/or misleading because Mr Sehgal was the person who caused the Payroll Advice reports to be provided to the Fair Work Inspectors and ; and Mr Sehgal was the controlling mind for all aspects of the business, including the operational approval requirements, i.e. rosters, time cards, payment processing;

    o in providing the Payroll Advice reports to Fair Work Inspectors and, Sabcha did not provide a written statement from a competent officer referring to the Cash Payments for the purposes of section 718A(4).

    • Paragraph 13 alleges that Sabcha failed to provide all of the documents required to be produced pursuant to the Notice to Produce dated 18 June 2021 (June NTP) by 30 July 2021 or at all, in contravention of section 712 of the FW Act. The OFWO provides the following additional information:

    o Sabcha did not produce the following documents, which were required to be produced pursuant to the June NTP (in respect of the category which required "All documents or records, including payslips, that relate to or record the payment of wages for each separate pay period to the employees for work performed during the Relevant Periods"), at all:

    · cash payment receipts; and

    · any other information in relation to the Cash Payments;

    o these records and documents were, or should have been, within Sabcha' spossession or control at the relevant time because documents were produced to the OFWO by employees who had retained copies prior to submitting them to Sabcha.

    • Paragraph 14 alleges that, during the Assessment Period, Sabcha deducted $40 each from the Employees named in Table 9 and $80 from and that such deductions were not authorised in accordance with section 324 of the FW Act. The OFWO provides the following additional information:

    o the amount of the deductions (being the amount of $40) is evidenced by Payroll Activity [Summary] 06-Dec-18 To 06-Jun21 provided by Sabcha in response to the June NTP.

    o even if the ECA did apply, clause 13 of the ECA does not authorise a deduction fo runiform allowances. Rather, clause 13(b) states that employees "may be required to provide a deposit" and 13(d) confirms that "Any uniform deposits given will be returned to you upon return of your uniform." There is no evidence that the amounts deducted in Table 9 of the Contravention Letter were returned to the relevant Employees upon return of the uniform.

    o an employer who makes unauthorised deductions from amounts payable to employees contravenes section 323(1) of the FW Act, which requires employers to pay employees in full, and is a civil remedy provision.

    • Paragraph 15 alleges that during the Assessment Period, Sabcha contravened section 325 of the FW Act by requiring three of the Employees ( ) to spend amounts payable to them in order to "invest in" Sabcha. The OFWO provides the following additional information:

    o was required to spend $20,000.00 on or around 31 October 2017 as evidence by ANZ Lodgement Receipt and Partnership Agreement dated 30 August 2017.

    o was required to spend $8,200.00 on or around 8 July 2019 (being his 'Holiday Pay'), as evidence by an email from Mr Sehgal sent on 8 July 2019 at 17:38.

    o provided testimonial evidence that it was Mr Sehgal's practice to require some of the Employees (including and) to "invest in" Sabcha as a way to ensure their visa status or ability to gain permanent residency.

1. The information in the Contravention Letter, supplemented by the information above, is sufficient to allow Sabcha to respond to the allegations in the Contravention Letter.

   Next Steps

2. The OFWO asks Sabcha to consider the calculation files and the further details about the evidence used in making the findings of contravention. If required, the OFWO offers to hold a MS Teams meeting with you, to explain the functional workings of the calculation files.

3. If you require a calculation file meeting please notify us so we can organise this to occur. If a meeting is not required, Sabcha is to provide the OFWO an update regarding their position after considering the calculation files.

4. Please provide your response as soon as possible, and in any event by 2 February 2024

5. Following receipt of the information the Tribunal issued a further Invitation to Comment pursuant to s.359A of the Act to the applicant as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION — SABCHA PTY LTD

   I am writing on instruction from the Member conducting your review, in relation to the application for review made by Sabcha Pty Ltd in respect of a decision to refuse business sponsorship applications.

   In conducting the review, we are required by the Migration Act 1958 to invite Sabcha Pty Ltd to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information. The particulars of the information are:

6. Information sourced from the investigation conducted by the Fair Work Ombudsman (FWO) into Sabcha Pty Ltd and the 11 restaurants trading as 'P'Nut Street Noodles' in New South Wales and Queensland and which commenced on 15 December 2020 has revealed the following:

   Contraventions

7. Based on information and evidence obtained by the FWO during the investigation, the FWO found that during the Assessment Period, the Employer contravened the following provisions of the FW Act and FW Regs (Contraventions), in relation to the employees set out in Appendix A (Employees) (see attached). Details of the Contraventions are set out in Appendix B (see attached) Section 45 of the FW Act — by failing to comply with the following terms of the Award:

8. 1.clauses 20.1 of RIA 2010 and 18.1 of RIA 2020 — by failing to pay the minimum rate of pay specified for a full-time and/or part-time employee according to their classification and their ordinary hours worked Monday to Friday;

9. 2. clauses 34.2(a)(i) of RIA 2010 and 24.2(c) of RIA 2020 — by failing to pay the additional Late Night penalty amount specified for each hour or part of an hour worked between 10:00pm and midnight, Monday to Friday (in addition to the minimum rate of pay for ordinary hours worked);

10. 3. clauses 24.2 of RIA 2010 and 21.3 of RIA 2020 — by failing to pay full-time and/or part-time employees who have a broken workday a split shift allowance for each separate work period of two hours or more;

11. 4. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020— by failing to pay full-time and/or part-time employees 125% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a Saturday;

12. 5. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020— by failing to pay full-time and/or part-time employees 150% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a Sunday;

13. 6. clauses 34.1 of RIA 2010 and 24.1 of RIA 2020— by failing to pay full-time and/or part-time employees 225% of their minimum rate of pay for their relevant classification for the ordinary hours worked on a public holiday;

14. 7. clauses 33 of RIA 2010 and 23 of RIA 2020 — by failing to pay overtime to a fulltime and/or part-time employee who worked hours entitled to an overtime payment in accordance with the percentage amount applicable for the period of overtime hours worked; the following other sections of the FW Act:

15. 8. sections 90 of the FW Act — by failing to pay annual leave, at the employee's base rate of pay when an employee took a period of paid annual leave and/or when an employee's employment ended, at the amount that would have been payable to them had they taken that leave (including leave loading as per clauses 35.2(b) of RIA 2010 and 25.3 of the RIA 2020);

16. 9. section 535(1) of the FW Act — by failing to make and keep for 7 years records ofthe kind prescribed by the following regulations of the FW Regs in relations to its employees:

    a.reg 3.32(e) — a record that specifies the date on which an employee's employment began;

    b.reg 3.33(2) — records of hours worked for an irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, a record set out the hours worked by the employee;

    c.reg 3.33(3) — if employee is entitled to be paid a loading or penalty rate or another separately identifiable entitlement, a record that sets out details of the payment, loading, rate or entitlement (specifically, overtime payments);

    d.reg 3.34 — a record that specifies the number of overtime hours worked by an employee during each day, or when the employee started and finished working overtime hours;

    e.reg 3.36(1) — a record for an employee entitled to leave that sets out the leave that the employee takes and the balance (if any) of the employee's entitlement to that leave from that time;

    10. section 536(1) of the FW Act — by failing to issue pay slips within one working day of paying an amount to an employee in relation to the performance of work for the Employer;

    11. section 536(3) of the FW Act — by issuing pay slips to employees the Employer knows is false or misleading, specifically those employees receiving wages paid both as a cash payment and an electronic funds transfer payment;

    12. section 718A of the FW Act — by providing a document to a Fair Work Inspector knowing or being reckless as to whether the document is false or misleading;

    13. section 712(3) of the FW Act — by failing to comply with the Notice to Produce served to the Employer on 18 June 2021;

    14. section 324 of the FW Act — by making an unauthorised deduction from the employee's pay for their uniforms that is not authorised by the Award, in writing or principally for the employee's benefit;

    15. section 325(1) of the FW Act — by requiring an employee to spend or pay the Employer an amount of the employee's money for their work uniforms or to invest in the business;

    16. section 96(2) of the FW Act — by failing to accrue progressively during a year of service an employee's entitlement to personal/carer's leave according to the employee's ordinary hours of work;

    17. section 99 of the FW Act — by failing to pay an employee paid personal/carer's leave at the employee's base rate of pay for the period of personal/carer's leave taken in relation to the employee's ordinary hours of work in the period.

    Underpayments

17. As a result of the contraventions listed above, the FWO determined that the Employer has underpaid the Employees a total of $ 1,150,992.85 The total amounts owed to each affected employee are set out in Appendix C (and per contravention in Appendix B) (see attached).

18. The Tribunal wrote to the applicant again pursuant to s.359A via his representative (Mr Estrin) on 2 March 2023 inviting him to comment on the above ongoing FWO investigation information before the Tribunal.

19. The representative responded on behalf of the applicant as follows:

    The Applicant has been assisting the Ombudsman with its investigations during this time but has, at all times, denied any non-compliance with Fair Work legislation and maintains that the ECA was applicable to the Applicant and all staff engaged under the P'Nut Noodle restaurant group.

20. The FWO Report, however, disclosed the following:

    During the Investigation the FWO offered Mr Ankur Sehgal (principal of Sabcha Pty Ltd) an opportunity to voluntarily participate in an electronically recorded interview to provide the Employer's version of events and respond to identified allegations. That offer was declined.

    Regulations 2.59(g) and 5.19(4)(b) require that 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. The terms 'adverse information' and 'associated with' are defined in regs 1.13A and 1.13B.

21. The relevance of this information is that it may indicate the nominator firm (Sabcha PtyLtd.) does not meet the requirements for approval as a nominator.

22. The information is further relevant in that it may indicate the applicant was not truthful when replying to the Tribunal 'Invitation to Comment or Respond to Information' issued on 2 March 2023 by claiming to have assisted with the FWO investigation.

23. If the nominator is found not to meet these criteria (regulations 2.59(g) and 5.19(4)(b)) – the Tribunal may affirm the refusal of the five applications for review made by Sabcha Pty Ltd.

24. Sabcha Pty Ltd is invited to give comments on or respond to the above information in writing.

25. The applicant (through its representative) responded to the Invitation on 15 November 2023 as follows:

    Sabcha Pty Ltd — Submission in Response Invitation to Comment

100.   We continue to act for Sabcha Pty Ltd (Sabcha) in relation to relation to theapplication for review in respect of a decision to refuse a standard business sponsorship application on 14 October 2021.

2. We write in response to the Administrative Appeals Tribunal's (Tribunal) Invitation to Comment dated 24 October 2023, which relates to the Fair Work Ombudsman (FWO) 'Findings of Contravention' document alleging Sabcha's contraventions of the Fair Work Regulations 2009 (Cth). Sabcha has engaged Hitch Advisory Pty Ltd (Hitch) as their legal representatives with regards to the FWO investigation.

3. Hitch advises that Sabcha has been granted until 20 December 2023 to respond and  that Sabcha is continuing to communicate with the FWO to resolve the matter. We have enclosed a letter from Hitch to this effect (Hitch Letter).

4. But for the issue of "adverse information", the applicant meets the relevant criteria for approval as an SBS under Regulation 2.59 and the relevant criteria for 2.60S of the  Regulations.

Adverse information - Sabcha's Position

101. On 18 October 2023 the FWO made the finding that Sabcha had contravened various sections of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (0th), on the basis that Sabcha had failed to comply with terms of the Restaurant Industry Award 2010 and Restaurant Industry Award 2020. This is because the FWO believed that the Employee Collective Agreement (ECA) does not apply at all to Sabcha-related companies and deemed the employees to fall under the Restaurant Industry Awards, then determined that Sabcha had contravened these Awards. As such, the main issue of the matter is an assessment of the applicability of Sabcha's ECA.

102.   Sabcha's position has always been that it denies the FWO's allegations. It denies the allegations on the basis that the specific provisions of the Awards did not apply to it during the Assessment Period and submits instead that the ECA applied to the relevant Employees;

103.   It also denies the allegations and reaffirms that it has remunerated the relevant employees in accordance with the obligations outlined pursuant to the ECA.

104.   Sabcha is working with Hitch to communicate with the FWO in an attempt to resolve the matter, which is principally overarching interpretation issue and does not indicate intentional or malicious underpayment of staff.

105.   The matters raised by Hitch Advisory in its letter to the Fair Work Ombudsman dated 6 November 2023 (attached to the Hitch Letter) also form part of the submissions as to whythe adverse information should be disregarded.

106.   The FWO found, at Appendix B of the FWO decision, that "during the Assessment Period, the Employees listed in Appendix A were not working in restaurants and/or take away shops owed by [Sabcha Pty Ltd]. Instead, they were working in the restaurants owned and operated by the various P'Nut Companies. Therefore, the ECA does not apply to the Employees."

107.   The quantum of Sabcha's alleged underpayment of employees is so high because the FWO has made an assessment of an overarching interpretation and applicability issue, rather than any wrongdoing being so grave as to warrant an adverse impact on its employees.

Reasonable to disregard - skills shortages

108.   Sabcha and Sabcha-related stores operate in the hospitality industry, with 11 stores currently across New South Wales and Queensland. The current skill shortages throughout Australia are so well known that the Temporary Skill Shortage visa and corresponding occupation lists to cover occupations in demand were created to allow employers to address labour shortages. (4)

109.   Moreover, staff shortages in the hospitality industry specifically are listed as the number one largest current issue in 2023.5 The ABC writes that shortages of workers are still 'continuing to plague the hospitality industry', which has been occurring since at least the start of the COVID-19 pandemic.6 The Accommodation and Food Services industry has almost consistently grown over the last 20 years and is expected to continue its growth trajectory by 13.2% for at least the next three years, through to November 2026.

110.   In short, if the Tribunal finds it is not reasonable to disregard the adverse information, it penalises both Sabcha and its employees directly. This cannot be the intent of legislation which seeks to protect innocent workers from suffering disadvantage because of any alleged wider ranging underpayment issues of their employer.

111.   Sabcha is already struggling to run its restaurants even with skilled labour sourced from overseas. Without the ability to sponsor, its operations will be even more severely affected; it would not be a stretch to say that Sabcha may have to close branches and consolidate operations.

4.    Australian Government, Department of Home Affairs, Temporary Skill Shortage visa (subclass 482) < temporary-skill-shortage-482/short-terrn-stream>.

5.    The Mirage, 7 biggest current issue in Hospitality industry in 2023, < News, Worker shortage plagues hospitality industry, low wages', insecure casual work cited as factors <   Labour Market Insights, Accommodation and Food Services, Overview <     Whether the FWO's decision is a modern-day attempt at eroding legitimate Howard-era Work Choices contracts or not, penalising Sabcha by not allowing them to sponsor skilled staff to fill genuine shortages is not a sound economic policy outcome. With a payroll of over $4 million in the 2022 financial year, a significant Australian workforce is jeopardised.'

113.   When Wage Inspectorate Victoria found Woolworths to have underpaid its staff more than $1m in entitlements,

· Woolworths did not lose its right to sponsor employees.

· When Fair Work found that Coles or the Commonwealth Bank of Australia all significantly underpaid staff their ability to sponsor was also not removed.

114.   Should Sabcha not be afforded the same treatment, particularly considering it relied on a legitimate ECA which passed the fairness test by the Workplace Authority in 2008 and continued unscathed to date?

Recommendation

115.   On the basis of the above, the Tribunal should disregard the adverse information and not make an adverse decision regarding Regulations 2.59(g) of the Regulations. It is, without a doubt, reasonable to disregard the adverse information.

FINDINGS

116.   The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the criteria in reg 2.59 and the additional criteria in reg 2.60S, which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: s 140E(1).

117.   The Tribunal finds that if the Tribunal is not satisfied in respect of any one of the requirements of reg 2.59 or reg 2.60S, it is not necessary to consider the remaining requirements.

The Hearing

118.   The Tribunal noted that it was concerned that procedural fairness be accorded to the parties.

119.   Hence various hearings had been postponed due to lengthy dealings with the FWO. The were also matters of which the Tribunal was not previously aware. The matter was complicated and somewhat "old" as the original ECA work agreement was made in 2007.

120.   The FWO saw its role as adjudicating industrial matters. The FWO had in the instant case given significant time and opportunity for the applicant to respond to their investigative findings.

121.   The Tribunal informed the parties that it had, for its part, allowed the applicant's dealings with the FWO to 'play out' in the interest of procedural fairness - but at some stage it had to make a decision. The Tribunal had to balance its responsibilities to be "fair, just, economical and quick" in its decision making. Unfortunately, it observed, to its chagrin, that the matter had not yet been resolved at the FWO.

122.   The Tribunal observed that it had been informed that the applicant had not responded to the FWO's last offer to comment. The applicant informed that they had, in fact, responded to it and before close of business. Mr Kristic informed that the applicant was aware that there had not been a resolution. The FWO had given a lot of engagement regarding potential legal argument. They disagreed with the FWO about the separate business allocation and insisted on Sabcha being treated as 'related parties' - though it was not in control of all the P'nut restaurants. Sabcha owned and operated 6 of the restaurants itself - at one significant time.

123.   The Seghal family members were ultimate beneficiaries. Inadequate importance had been given to this 'related parties' evidence in his opinion. Other calculations were not also incorporated properly by the FWO in their handling of the matter.

124.   The Tribunal noted its recent experience of applicant companies which had attracted significant potential FWO fines of more than million dollars. Nevertheless, companies could still resolve adverse information with the Department and be approved as sponsors subsequently after resolution of the adverse issues raised with the FWO.

125.   Mr Kristic said that the applicant firm was not involved in visa fraud or something similar but rather it was an argument over the interpretation of industrial law. The applicant was at the mercy of the glacial pace of the resolution of the problem. They had been told resolution was imminent in December only to find it was not resolved.

126.   The Tribunal requested the representative to give it an update of any communication or resolution of the matter by the end of April 2024. The Tribunal was eager to finalize all the reviews. The representative agreed to do so.

127.   Mr Seghal thanked the Tribunal for its extension of time. He referred to his particular concern for the hard working visa applicants and their dependants. This included children born in Australia.

Adverse Information

128.   Regulation 2.59(g) requires that 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. The terms 'adverse information' and 'associated with' are defined in regs 1.13A and 1.13B.

Meaning of adverse information

129.   The Tribunal became aware from a previous review that there had been an ongoing investigation of the applicant firm by Border Force and the subsequent issue of a ban on sponsorship by the Department.

130. Subsequently, on review by the Tribunal (AAT 2109599) the ban was set aside when (on the available information) the Tribunal substituted a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958 (Cth).

131.   However, the Tribunal later became aware of a separate and major ongoing investigation into the applicant and its associated entities (see above) by the Fair Work Office (FWO). The information was confirmed by the applicant's representative.

Please note that the Fair Work Commission announced (FWC) (on its website) an investigation into Sabcha. This process is still ongoing. Sabcha are co-operating with the FWC. However, no outcome has been reached on the matter. At the time of submitting the sponsorship application, the applicant confirms that there is no adverse information in relation to Sabcha, its directors or any associated entities.

132.   The Tribunal has investigated this matter further and is informed (by the FWO) that there is, in fact, a significant and ongoing investigation of the applicant at the time of writing. The adverse information presented to the Tribunal by the FWO in correspondence has had lengthy consideration by the Tribunal in the interest of procedural fairness. In particular, the Tribunal notes the representative's recent conclusion — "that the matter with the FWO was still ongoing and would not be likely to be fully resolved by end of the calendar year". The Tribunal is of the view that the review should now proceed to a conclusion. The Tribunal notes that the applicant representative informs it (see above) that it wishes to have a decision made 'on the papers' for its attached ‘Sabcha' visa applicant clients in their respective reviews.

133.   The Tribunal is of the view that there is (pursuant to reg 1.13A) a significant amount of adverse information involving the applicant. It is informed that the intention of the FWO is that this adverse information (see earlier) will form the basis for litigation by the FWO with the applicant. Along the way the FWO has presented opportunities to the applicant to comment on its findings. The Tribunal has allowed the applicant significant procedural discretion to pursue this course of conduct — a fact which has been acknowledged by the applicant's representative.

134.   The applicant's representative has insisted strongly that the collateral impact of an affirmation of the refusal decision by the Tribunal will be economically dangerous for the applicant and the restaurant industry — already recovering from the disruption of the pandemic. Also, it will impact adversely on the various visa applicants and their dependants - who themselves (vicariously) will be affected by any decision to affirm the refusal of a sponsorship to Sabcha P/L by the Tribunal.

135.   The applicant (via his representative) has been steadfast in adhering to the notion that the FWO findings are misconstrued and incorrect. The applicant insists its conduct is in accord with the labour law set out when the ECA was made. As far as the applicant's representative is concerned the dispute is unresolved. He contends it is basically a conflict over the applicability of the ECA to 'Sabcha'- related companies and workers and its interpretation by the FWO from an industrial relations perspective. He denies any deliberate labour law breaches or infractions and finds the delay in the FWO final decision to be, of itself, unreasonable to the applicant and prejudicial to the visa applicants. He contends that, on this basis alone it merits a finding in favour of the applicant that it is reasonable to disregard the adverse information which has been presented to the Tribunal by the FWO.

136.   Having considered the applicant's plea to disregard the adverse information and the whole of the evidence before it, the Tribunal finds that the claimed conduct and alleged infractions in the information (found by the FWO investigation) meet the threshold definition of 'adverse information' found in reg 1.13A.

137.   In deciding whether it is 'reasonable to disregard' the 'adverse information' the Tribunal examined the evidence employing (among others) the following considerations:

·            the nature of the adverse information

·            how the adverse information arose, including the credibility of the source of the adverse information

·            in the case of an alleged contravention of a law, whether the allegations have been substantiated or not whether the adverse information arose recently or a long time ago

·            whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur

·            information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.

138.   The Tribunal finds that the conclusions reached from the FWO's investigation of Sabcha and its related companies, though unresolved - are significant. There is a trove of adverse information gathered by the FWO over a number of years regarding alleged breaches of Commonwealth labour law. The FWO has indicated it has credible sources of information to base its findings and believes the allegations and findings have been substantiated. In fact, it also proposes to impose a substantial fine on the applicant and proceed with litigation instigated by the investigation. The applicant (while disagreeing significantly with the FWO findings) informs Sabcha has taken steps to ensure the circumstances (which led to the adverse information) do not recur (see par 10 above).

139.   However, having examined these considerations, and the whole of the available evidence, the Tribunal finds it not reasonable, under the circumstances, to disregard such adverse information.

140.   Given the above findings, the Tribunal is not satisfied that reg 5.19(4)(b) is met.

1. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

   DECISION

142.   The Tribunal affirms the decision under review to refuse the nomination.

Michael Cooke
Senior Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

(2A) Paragraph (2)(aa) does not apply if:

(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

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

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

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

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

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

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

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

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

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)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 identified person 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;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.