The Beer & Burger Cafe Pty Ltd (Migration)
[2018] AATA 122
•24 January 2018
The Beer & Burger Cafe Pty Ltd (Migration) [2018] AATA 122 (24 January 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: The Beer & Burger Cafe Pty Ltd
CASE NUMBER: 1614357
DIBP REFERENCE(S): BCC2016/1826839
MEMBER:Alison Mercer
DATE:24 January 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 24 January 2018 at 3:31pm
CATCHWORDS
Migration – Employment Nomination – Café/Restaurant Manager – Applicant’s website – Nature of business – Nominee’s terms of employment and conditions – Genuine need for nominated positionLEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 245AR(1), 359(2), 360(2)(a)
Migration Regulations 1994, rr 1.13A, 1.13B, 2.72(2)-(12), 2.73CASES
Drake v MIEA (1979) 24 ALR 577
Hneidi v MIAC [2009] FCA 983
Lobo v MIMIA [2003] FCAFC 168
Re Drake and 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 Immigration on 22 August 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant, The Beer & Burger Café Pty Ltd (trading as the Beer & Burger Bar), applied for approval on 24 May 2016. A nomination of an occupation for a subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa), which requires that the nominated occupation corresponds with an occupation specified by the Minister in a written instrument for the purposes of that paragraph. The applicant’s nominated position was Café or Restaurant Manager (Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 141111). The delegate found that this was listed in the relevant written instrument, IMMI 15/092, but that the instrument excluded positions based in Fast Food or Takeaway Food Service. The delegate concluded that the applicant operated a Fast Food or Takeaway Food Service, although she acknowledged that it also offered dining in facilities. The delegate therefore found that the position nominated by the applicant was excluded from being approved under r.2.72(10)(aa).
The Tribunal received a review application in relation to this decision on 7 September 2016. It was signed on behalf of the applicant by Mr Ryan Kurban, a director. Mr Kurban also provided an authority by which he appointed a registered migration agent, Mr Arthur Vasilopoulos, as the applicant’s representative and authorised recipient for correspondence. A copy of the delegate’s decision was also provided.
On 17 July 2017, the Tribunal wrote to Mr Kurban via his agent to invite them to attend a callover, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing, on 11 August 2017.
On 8 August 2017, the applicant’s agent advised that he and Mr Kurban would attend the callover on behalf of the applicant. The agent also provided written submissions, with accompanying documents, in support of the case. In summary, the agent made the following points:
·it was disputed that the applicant operated a fast food restaurant: on arrival at peak periods, customers were greeted by floor staff, who provided them with a menu and also brought to their attention that the applicant catered for particular dietary requirements, such as gluten-free, vegetarian, vegan and dairy allergies. Their attention was also brought to the weekly specials board and the availability of seasonal game burgers such as kangaroo, venison, buffalo and goat. The menu also provided for chicken, beef, pork, lamb and veggie burgers. Customers could make changes to the dishes and effectively build their own burger and accompaniments;
·customers placed their orders at the counter/bar and were given a table number. Their meals were then served to them by floor staff on plates and cutlery and napkins were provided. The plates and drinks were then cleared by floor staff and the staff sought feedback from customers on the service and meals;
·the applicant had a liquor licence, which recognised it as a Café/Restaurant, and its council registration as a food premises was also as a Café/Restaurant – Class 2. The drinks menu included international beers, craft beers and ciders, soft drinks and milk shakes. It also offered some spirits, even though these were not listed on the drinks menu.
·the applicant had a commercial kitchen and seating for 97 patrons. All menu items, apart from the buns, were prepared from scratch on the premises;
·the attached menu and recipes evidenced the different preparation and cooking methods required for the menu, including specials and seasonal items. The recipes clearly demonstrated the skills required to prepare these items from scratch, and this clearly differentiated the applicant’s menu from that of a fast food outlet. In particular, the recipes for pork and lamb shoulders, and how they were ultimately made into burger patties, indicated that the applicant’s business should not simply be classified as a fast food outlet;
·the applicant operated as a standalone business and was not part of a franchise;
·the Tribunal (differently constituted) had previously set aside a decision to refuse to approve the position of Restaurant Manager in a Grill’d café/restaurant, as it had found that the Grill’d business was not a fast food outlet due to aspects of its operations which were similar to the applicant’s: it made most menu items from scratch in a commercial kitchen, and those items required a high level of preparation; it had a liquor licence and was registered with the council as a café/restaurant; it had table service, cutlery and crockery; and it had hosts who greeted customers on arrival and advised them of specials and catered for dietary needs of customers [MRT 1408209];
·the agent noted that in the earlier Tribunal case, the Presiding Member had found that Grill’d fell somewhere in the middle of the spectrum between a 5 star restaurant and McDonald’s, and submitted that the applicant was extremely similar to Grill’d and thus should be seen in the same light. The agent further noted that the Presiding Member in the previous Tribunal case had recognised that gourmet burgers had become big business in Australia. He submitted that the burgers offered by the applicant were in the gourmet category, in that they were in a similar price category to a main meal, which was more expensive than a fast food outlet would charge for their burgers;
·the occupational caveats introduced on 1 July 2017 in fact supported the contention that the applicant was not a fast food outlet, and the duties and responsibilities of the nominated position clearly demonstrated that the applicant’s Café or Restaurant Manager had managerial responsibilities such as purchasing and pricing items to a budget, maintaining records of stock levels and financial transactions, organising special functions, assessing the level of customer satisfaction, and training and supervision of kitchen and wait staff. The position also had input into the menu, based on customer feedback. This was supported by the examples given in the Department’s interim guidelines for Café and Restaurant Managers. These duties clearly set the nominated position aside from the responsibilities in a limited service restaurant;
·further, the typical menu items for a fast food outlet listed in the Department’s interim guidelines were limited in nature and preparation requirements (such as toasties, standard burgers with chips, cakes etc), which was in contrast to the applicant’s menu, which featured meals made onsite from raw ingredients and featuring substantial preparation (such as peeling, chopping, de-boning, grating, seasoning and cooking using a range of equipment and techniques); and
·all of the above clearly demonstrated that the position nominated by the applicant should not be excluded under r.2.72(10)(aa).
The supporting documents provided included the following:
·position description for the nominated position;
·recipe book for the applicant, 2017;
·food and drinks menu for the applicant, indicating that orders are to be taken at the bar;
·extract from onthelistmelbourne.com.au, referring to the applicant’s participation in Good Beer Week (12 – 21 May 2017) and its sale of Brooklyn Brewery craft beers;
·council food premises registration of the applicant as a Café/Restaurant (Class 2 – Medium Risk premises), issued 30 December 2016;
·liquor licence issued to the applicant as a restaurant and café seating 97 patrons, issued 13 February 2017;
·floor plan for the applicant’s premises;
·copy of MRT decision 1408209 [2015] MRTA 790, dealing with a r.2.72 nomination of a Café or Restaurant Manager by Grill’d; and
·Departmental Interim Guidelines on Occupational Caveats, issued 1 July 2017.
On behalf of the applicant, Mr Kurban and the agent attended the callover on 11 August 2017 and discussed with the Presiding Member the additional updated documentation it could provide to demonstrate that it met all of the criteria in r.2.72 (not only r.2.72(10)(aa)). The Tribunal also discussed with them the fact that as of 19 April 2017 and 1 July 2017, the list of skilled occupations that could be nominated pursuant to r.2.72 had been amended to remove some occupations from the list and to add occupational restrictions (known as caveats) to others. The Tribunal noted that for the occupation of Café or Restaurant Manager to now be approved, it had to be established that the position was not located in a limited service restaurant (which included a fast food or takeaway food service, a fast casual restaurant, a drinking establishment offering only limited food service, a limited service café including one located in a shopping centre or mall, or a limited service pizza restaurant). Mr Kurban of the applicant and his agent acknowledged this new requirement and indicated that they believed the position that they had nominated met this requirement. They confirmed their written and documentary evidence to date, and Mr Kurban reiterated to the Tribunal that the nominee was fulfilling a crucial role in the applicant business and had contributed significantly to its ongoing growth. At the conclusion of the callover, the Tribunal indicated that it would shortly write to the applicant formally pursuant to s.359(2) of the Act to request the applicant to provide updated information demonstrating how it met all of the criteria set out in r.2.72.
The Tribunal did so on 14 August 2017. On 25 August 2017, the Tribunal received a response from the applicant’s agent which included:
·a current organisational chart;
·profit and loss statement for 2016/17 financial year, showing net profit of $196,019.95;
·most recent Business Activity Statements (BAS);
·current bank statements for the applicant;
·data from Payscale website that supported the assertion that the salary for the nominated position met market rates, noting that the data indicated that Restaurant Managers with up to 5 years of experience earn on average $53,000 per year, including tips, bonuses and overtime.
The agent also advised the Tribunal that the applicant had to close its premises for close to 3 weeks due to a fire, reopening on 11 August 2017. He noted that there was a debt of $50,237 to the Australian Taxation Office (ATO) shown on the BAS statement for the relevant period, but stated that the ATO had agreed to allow this debt to be paid by late September 2017 given that the business was not able to operate for a 3 week period. The agent further stated that the business anticipated receiving compensation from its insurer to assist with payment to the ATO, but in any case had $60,000 in its bank account to utilise if its insurer did not reimburse the business before the ATO due date.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Café or Restaurant Manager) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Ms Gina Christina Quinn, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Ms Gina Christina Quinn, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 141111), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 19 April 2022.
Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Ms Gina Christina Quinn as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Café or Restaurant Manager (ANZSCO code 141111) and specified that the location at which the occupation was to be carried out was Richmond in the state of Victoria, postcode 3021.
Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal has reviewed the nomination application contained in the Department’s file and is satisfied that it is certified in the nomination that the applicant had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
Accordingly, the Tribunal finds that the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). The Tribunal is satisfied that this is not the case here.
In addition, as raised with Mr Kurban of the applicant and his agent at the call over, since the nomination application was lodged on 24 May 2016 and refused on 22 August 2016, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the current instrument IMMI 17/060. Currently, note 8 of IMMI 17/060 provides that a Café or Restaurant Manager position is excluded from being approved under r.2.72(10)(aa) if the position is located within a limited service restaurant.
The Departmental Procedures Advice Manual (PAM3) (as at 17 January 2018) provides the following advice about what constitutes a ‘limited service restaurant’ in section 4.8.1.3 ‘Occupation Specific Caveats’:
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Cafe or Restaurant Manager (ANZSCO 141111) – Condition 8
A caveat is in place for this occupation which excludes 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 including, but not limited to, coffee shops or mall cafes;
· limited service pizza restaurants.
For further advice regarding how the above terms are defined, refer to Section 4.8.1.4 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 2 café or restaurant manager positions only – that is, leadership positions in a dining establishment that involve managerial tasks such as planning menus, organising special functions, purchasing and pricing items according to a budget and maintaining records of stock levels and financial transactions. Café or Restaurant Managers are also expected to assess the level of customer satisfaction and be responsible for selection, training and supervising of waiting and kitchen staff.
Note: This does not mean that other tasks cannot be completed by visa applicants nominated as a Café or Restaurant Manager. To meet program requirements, it is expected that only very limited/ad hoc time would, however, be spent doing other tasks, not listed in ANZSCO, that could be performed by a non-skilled employee.
Employer sponsored skilled visa programs are not considered appropriate to fill skill level 4 positions such as Café Worker (ANZSCO 431211) and Waiter (ANZSCO 431511), which are not currently included on the approved list of occupations and should be able to be sourced from the local labour market.
When determining whether the caveat applies, officers should first confirm that the nominated position is not located in a limited service restaurant – using the guidelines provided at Section 4.8.1.4 Additional advice on hospitality positions and caveats.
If this is not the case, additional assessment may be warranted if the officer has concerns that a significant amount of the nominee’s time will be spent on administrative or selling and/or serving food and beverages (e.g. taking orders, operating cash registers, cleaning tables, serving meals/drinks), as opposed to organising and controlling the operation of a café/restaurant.
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4.8.1.4. 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 the subclass 457 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.Definitions
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.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/restaurantsDrinking establishments that offer only a limited food service
Nominations can be received for the occupations of cooks, chefs 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.
Limited service cafes including a coffee shop or mall cafe
Nominations can be received for the occupations of cooks, chefs 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 cafes 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/restaurant below.
Limited service pizza restaurant
Nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a pizza restaurant. In some cases, these establishments will provide mainly a takeway 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 takeway 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.
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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.
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 by a waiter/waitress – 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.
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 causal 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.
…
In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1] Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case.
[1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].
However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[2] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[3] But where the policy is more narrow or restrictive than the legislation, it will not be a lawful policy and reliance on it would be likely to constitute a jurisdictional error.[4]
[2] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.
[3] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.
[4] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].
As noted above, the delegate concluded that the applicant’s business was a fast food or take away business, and thus did not come what was (at that time) Departmental policy. The issue for the Tribunal now, following the introduction of IMMI 17/060 on 1 July 2017, is whether the applicant’s business is a limited service restaurant: if so, its nomination of Ms Quinn as a Café or Restaurant Manager cannot be approved for the purposes of r.2.72(10)(aa) due to note 8 of IMMI 17/060.
The Tribunal is satisfied that the applicant’s business is not a fast food or takeaway service: although the Tribunal acknowledges that it takes orders for food to be picked up by customers, it is satisfied that it is predominantly a dine-in facility with seating for 97 customers. The Tribunal is further satisfied that it is not a predominantly a drinking establishment that offers only a limited food service, that it is not a limited service café such as a coffee shop or mall café, and that it is not a limited service pizza restaurant.
The issue for the Tribunal is therefore whether the applicant’s business is a fast casual restaurant.
Based on the evidence provided, and taking into account the applicant’s website ( the Tribunal is satisfied that:
·the applicant operates a restaurant and bar in Richmond that has a seating capacity for 97 diners, operating from 11am to 10 or 11pm, 7 days a week;
·it is a standalone venue and is not part of a franchise or chain;
·it is licensed to serve alcohol and is registered with the relevant regulatory authority as a Café/Restaurant – Class 2. Information provided by the Victorian Department of Health indicates that Class 2 food premises are those whose main activity is handling unpackaged potentially hazardous foods which need correct temperature control during the food handling process, including cooking and storage, to keep them safe. The Department of Health information indicates that Class 2 premises include restaurants, fast food outlets, pubs, caterers, delicatessens (including those located within supermarkets), cafes and most manufacturers: business currently employs 3 Cooks, 3 Cook/Kitchen Hands, 3 Floor Staff, and a Venue Manager (the nominated position). They are employed by Mr Kurban, the owner/operator and director of the applicant company;
·diners may order food to pick up or may dine in. Diners dining in are greeted by wait staff and shown to a table and provided with a menu. Specials are explained to them and dietary needs are canvassed. Diners then place an order for food and/or drinks at the bar and are brought their food and/or drinks by floor staff. Crockery/dining utensils, cutlery, glassware and napkins are provided;
·the menu consists largely of gourmet burgers, including various types of meat patties prepared in various ways, together with various salad and sauce ingredients. There is also a vegetarian burger and a variety of side dishes, including hot chips prepared in various ways, spicy chicken wings, onion rings, crumbed jalapenos and cheese balls. The business caters for dietary needs such as gluten intolerance. The website indicates that diners may ‘customise’ burgers by adding or subtracting ingredients;
·the price of the burgers ranges from $14 to $17.50, with a collective dish featuring 4 different miniature sliders being $25;
·the business offers weekly specials, which consist of price deals for existing menu items and combinations of these, depending on the day of the week, and it also offers specials consisting of game burgers (eg venison, goat) which change seasonally;
·all food is prepared from scratch on site in a commercial-grade kitchen, with the exception of the brioche buns and white rolls for the burgers, which are bought ready-made;
·the drinks menu offers 22 international beers, 6 craft beers, wine, milk shakes, soft drinks and 7 ciders, plus beer on tap which changes regularly. A limited range of spirits is also offered; and
·the business does not take table bookings.
The Tribunal has had regard to the Departmental policy set out above, and considers that, in relation to the applicant’s business, there are both factors that weigh in favour of the applicant’s business being classified as a fast casual restaurant, and also factors that weigh against it.
Factors that suggest that the applicant’s business falls within the category of a ‘fast casual restaurant’ include the fact that:
·it does not take reservations;
·customers order and pay at the bar;
·it offers takeaway food;
·it does not employ Chefs (but instead employs Cooks);
·it has a relatively limited menu that mostly consists of various types of burgers with various accompaniments and side dishes; and
·it has a relatively small ratio of wait staff to customers (3 to up to 97, assuming it is operating at full capacity).
On the other hand, the factors that suggest that the applicant’s business should be distinguished from a ‘fast casual restaurant’ include the following:
·it is a standalone business and is not part of a chain or franchise;
·it is predominantly a dine-in venue with seating for 97;
·it has a liquor licence and serves a reasonable range of alcoholic and non-alcoholic drinks;
·it is open from late morning to late evening, 7 days per week;
·its registration with the council is as a Café/Restaurant for both food and liquor purposes;
·the food (apart from the burger buns) is made from scratch on the premises by 3 Cooks in a commercial grade kitchen with fresh ingredients, utilising a variety of preparatory and cooking techniques;
·the burgers offered are ‘gourmet’ burgers and can be customised. Various dietary needs are catered for. Additional seasonal menu items are offered;
·food is served on crockery, with glassware and cutlery provided for diners;
·the burger prices are higher than a conventional ‘fast food’ burger outlet (such as Hungry Jack’s or McDonald’s) and are also slightly higher than similar ‘gourmet burger’ chains (such as Grill’d); and
·although customers dining in place orders at the bar, there are wait staff who greet them upon entry, provide menus and advice on specials and dietary needs;
In terms of how it advertises itself, the applicant’s website states that ‘The Beer and Burger Bar in Richmond offers an extensive range of burgers with a focus on locally sourced ingredients and over 40 craft international beers and ciders. We feature a Game burger that changes for every season, and a Specials burger that changes frequently’: >
In the Tribunal’s view, the factors in this case are very closely weighted. However, on balance, the Tribunal ultimately considers that it is not appropriate to classify the applicant’s business as a fast casual restaurant, given that it is a standalone business operating the kinds of hours a restaurant would be expected to operate, largely provides dining in for patrons (but with some take away service), is licensed, and – although the focus is largely on burgers – its food is predominantly made onsite, from fresh, high quality ingredients, by Cooks in a commercial grade kitchen. Although customers’ orders are not taken at the table but made at the bar, the business nevertheless employs wait staff who greet customers, provide them with menus and advice, and bring them their food, which is served on crockery with cutlery and glassware. While the business does not offer full service by wait staff, the Tribunal is satisfied that the wait staff provide a level of service that is greater than that provided in a fast food or takeaway outlet. Taken cumulatively, these factors lead the Tribunal to conclude that the applicant’s business should not be characterised as a fast casual restaurant, or as a limited service restaurant (as that term is explained in PAM3) and thus to conclude that its nomination is not excluded by note 8 of IMMI 17/060.
The Tribunal is satisfied, having compared the position description provided to the Department by the applicant with the ANZSCO occupational description for a Café or Restaurant Manager, that the duties of the nominated occupation correspond to those of the occupation of Café or Restaurant Manager (ANZSCO code 141111). (A more extensive comparison is set out below in the Tribunal’s discussion of r.2.72(10)(f)).
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10)(AB).
Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings consist of her base salary of $54,000 plus 9.5% superannuation as per the letter of employment provided to the Department with the nomination application in May 2016. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied from the documentary evidence provided by Mr Kurban and the applicant’s agent on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
Having regard to IMMI 09/113, the Tribunal is satisfied that the Restaurant Industry Award 2010 does not cover the occupation of Café or Restaurant Manager. The Hospitality Industry Award 2017 includes a reference to Managerial Staff – Hotel, but not to Managerial Staff in a Café or Restaurant. It does have a reference to a Level 5 Food and Beverage Supervisor, for which the base weekly pay rate is listed as $859.80 (or approximately $42,990 per year), but with various loadings for weekend work and other overtime. It is not entirely clear to the Tribunal whether this would be applicable to the nominated position or not. The applicant did not claim to have based the nominee’s salary on this, but instead used market rates. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:
·the Government’s Job Outlook website (accessed January 2018) which indicates that the average weekly earnings before tax for Café or Restaurant Managers are $900 before tax (or $46,800 annually) (data stated to be based on an Australian Bureau of Statistics survey undertaken in August 2015): Payscale website ( report (accessed 22 January 2018) provides a salary range for a Café Manager in Australia of $39,370 to $60,849, with the median salary being $49,991: Payscale website ( report (accessed 22 January 2018) provides a salary range for a Restaurant Manager in Australia of $45,371 to $65,187, with the median salary being $54,008: for various full time Café or Restaurant Manager positions in Melbourne listed on Seek.com.au as at 22 January 2018 where a salary range is given:
oRestaurant Manager for Sardinian Italian restaurant in Melbourne CBD, at $20 to $29.99 per hour (equivalent to approximately $39,220 to $59,280 per year, based on a 38 hour week), advertised on 22 January 2018;
oRestaurant Supervisor/Assistant Manager, at well established breakfast, lunch and brunch place in Melbourne CBD, salary range of $50,000 to $64,999, advertised 22 January 2018;
oCafé Manager for espresso premises in Melbourne CBD and inner suburbs, salary range of $50,000 to $54,999, advertised 18 January 2018; and
oRestaurant Manager, RACV, Mornington Peninsula location, salary range of $85,000 to $95,000 for experienced manager, advertised 17 January 2018.
The Tribunal is satisfied from the most recent salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation. While the last Seek position involves a significantly higher salary, the Tribunal notes that this appears to be a more senior role as Restaurant Manager within a significantly larger business than the nominated position. Moreover, evidence from the other sources listed above indicates a broader salary range with a lower starting point and median range.
On balance, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings are $54,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT and it is reasonable to disregard r.2.72(10)(cc).
Based on the market salary rate information assessed in paragraphs 58 to 61 above, the Tribunal is satisfied that the Payscale salary range median figure for a Restaurant Manager is $54,008, which also exceeds the TSMIT. Although the Payscale salary range median figure for a Café Manager is $49,991 which is below the TSMIT, the Tribunal considers that it is more appropriate to use the salary range for a Restaurant Manager, given the nature and size of the applicant’s business. The Job Outlook average weekly salary annualises to $46,800, which is below the TSMIT, but this is based on ABS information from August 2015, so the Tribunal gives it less weight than the Payscale information, which is current. Of the 4 Seek advertised positions, 2 have a range where the lowest point exceeds the TSMIT, while the starting point for salaries for the other 2 positions is below the TSMIT.
On balance, considering the above information cumulatively, the Tribunal is satisfied that the base rate of pay of an Australian employee in an equivalent role to the nominated position would be higher than the TSMIT.
Given this finding, the Tribunal finds that r.2.72(10)(cc) is met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
As noted above, from the evidence provided by the applicant to the Department and Tribunal, the Tribunal is satisfied that the applicant operates a standalone burger restaurant based in inner city Melbourne which presently employs approximately 10 people (including the nominee) in addition to the director and owner, Mr Kurban. Of these 10 employees, there are 3 Cooks, 3 Cooks/Kitchen Hands, 3 Wait Staff, and the nominated position of Restaurant Manager, according to the most recent organisational chart provided in August-September 2017.
The Tribunal has had regard to the ANZSCO occupational description for a Café or Restaurant Manager, as set out below:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:NZ Register Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.Tasks Include:
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff
omay take reservations, greet guests and assist in taking orders
Occupation:141111 Cafe or Restaurant Manager
141111 CAFE OR RESTAURANT MANAGER
Alternative Titles:Food and Beverage Manager
Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.Skill Level: 2
Specialisations:Bistro Manager
Canteen Manager
Caterer
Internet Cafe Manager
Mess Supervisor
Steward (Navy)
…The position description provided to the Department by the applicant (confirmed by Mr Kurban at the callover to be current) lists the following responsibilities for the nominated position:
Duties and Tasks to be performed by Café/Restaurant Manager:
Reports to: Director
Duties and Responsibilities Specific to the Position:
Plan, organise, direct and coordinate the staff and resources of the café/restaurant for the efficient, well-prepared, and profitable service of food and beverages
·Good planning and organisation skills
·People management skills
·Excellent communication skills
·Initiative
·Strong analytical skills
·Smart appearance, well presented
·OH & S and Hygiene standards maintained
Requirements
Diploma in Hospitality OR at least three years relevant work experience as a café/restaurant manager
Tasks include:
·Good planning and organisation skills
·People management skills
·Excellent communication skills
·Initiative
·Strong analytical skills
·Smart appearance, well presented
Duties and Responsibilities:
·Liaise closely with the Director while playing an active role in the running of the café/restaurant, ensuring all policies and standards are maintained with the object being to maximise profitability with sales of food and beverage products
·Maintain constant communication with the Head Chef in planning menus and passing on relevant information
·Maintain correct occupational health and safety procedures as required and ensure all staff are aware of these procedures in their specific work areas
·Ensure incident reports are completed efficiently, with sufficient details and follow through within appropriate timeframes
·Assume responsibility for any matters within the restaurant which may arise during the service period and solve them in the most appropriate and effective way with an emphasis on safety and customer service/satisfaction
·Arrange the purchasing and pricing of goods according to budget
·Maintain bar/café/restaurant inventory according to stock levels and advise on re-ordering needed
·Maintain hygienic food handling practices and cleanliness of all waiting, bar and function staff
·Meet, greet, seat and farewell customers at the restaurant
·Organise table reservations
·Advise customers on menu and wine choice
·Promote the café/restaurant and functions to potential clients
·Ensure effective communication by attending meetings as required and holding staff meetings on a regular basis to impart information
·Carry out induction training for all new members of staff, ensuring their complete familiarisation with all systems and ensuring their ability to carry their tasks
·Ensure ongoing staff training is maintained
·Maintain and manager staff rosters, holidays and absenteeism
·Ensure staff are correctly appointed and all necessary records are kept
·Keep accurate records of all orders, deliver notes and invoices
·Coordinate regular stocktakes of food, beverage, equipment and/or linen and review figures from this inventory
·Closely monitor customer feedback focussing on appropriate follow up and action
·Prepare cash drawers and provide petty cash as required
·Ensure correct operation and balancing of cash registers
·Undertake banking duties
…
The Tribunal is satisfied that the position description above largely corresponds to the occupational description for a Café or Restaurant Manager as set out in ANZSCO.
At the callover, Mr Kurban emphatically disagreed with the delegate’s conclusions that the scope and scale of his business did not require a Café or Restaurant Manager in addition to himself (as owner/director). Having had the benefit of additional documents and information, and an opportunity to speak with Mr Kurban at the callover, the Tribunal has formed the view that the nominated position does and would carry out the majority of the ANZSCO duties listed for a Café or Restaurant Manager (with a number of exceptions).
In particular, the most recent evidence available to the Tribunal indicates that the applicant’s business does not offer reservations and no evidence has been provided to indicate that it offers private functions or catering. Therefore, the Tribunal does not accept that those duties form part of the nominee’s position, despite their inclusion in the position description provided to the Department.
However, the Tribunal has had regard to Mr Kurban’s written statement of 7 July 2016 to the Department (the contents of which he confirmed at the call over), which indicates that the duties of the nominated position were originally split between himself, the nominee (who was limited to 20 hours per week due to her visa conditions), and other cooking and wait staff. However, Mr Kurban found this to be inefficient and therefore decided to place all of the responsibilities with one position (the nominated position), for which he had selected the nominee. Mr Kurban indicated that this would enable the business to run more smoothly and enable him to pursue other business interests, and the other staff to concentrate on their core duties, knowing that the applicant business was under the nominee’s management. He noted that the nominee was an existing employee since 2015, and that she had over 6 years of experience in the hospitality industry in Australia and overseas.
Based on the available evidence, the Tribunal is satisfied that the duties of the nominated position include organising and controlling the operations of the applicant’s restaurant to provide dining (and some take away) services, as per the ANZSCO occupational description. More specifically, the Tribunal is satisfied that it involves the following ANZSCO duties:
- planning menus in consultation with Chefs
- planning and organising special functions
- arranging the purchasing and pricing of goods according to budget
- maintaining records of stock levels and financial transactions
- ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
- conferring with customers to assess their satisfaction with meals and service
- supervising waiting and kitchen staff
- may greet guests and provide information about the menu
The Tribunal acknowledges that the duties of the nominated position do not include planning and organising special functions, making and managing reservations, and no evidence has been provided to indicate that the nominee selects staff. However, the Tribunal accepts that she is responsible for staff supervision. The Tribunal does not consider that the duties of the nominated position must correspond exactly with those in ANZSCO but is satisfied that the duties of the nominated position in this case include the majority of those listed in ANZSCO for a Café or Restaurant Manager. The Tribunal considers that it is reasonable that not all of the ANZSCO duties might be performed by all Café or Restaurant Managers, as this would depend on the nature, size and scope of the establishment in question.
Although a relatively small company, the profit and loss statement for the 2016/17 financial year provided to the Tribunal indicates that the business made a gross profit of $1,199,272 and a net profit of $196,091 in that financial year, with wages expenses of approximately $580,000. This is consistent with the BAS provided to the Tribunal for the same period. As noted by the applicant’s agent, the applicant owed the ATO $50,237 in GST debt as at 28 July 2017 but had a business bank account balance of approximately $61,000 as at July-August 2017 and expected to receive payment from its insurer in a similar amount due to fire damage it experienced in that period.
Accordingly, while the applicant company is relatively small in terms of the number of employees, the Tribunal is satisfied that it has a genuine need for the nominated position, and that the nominated position will genuinely carry out the majority of tasks set out in ANZSCO for a Café or Restaurant Manager.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument.
The Tribunal is satisfied that the applicant provided a letter of employment for the nominee to the Department in May 2016 indicating that the nominee’s salary was $54,000 plus superannuation.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal is satisfied that the nominated occupation of Café or Restaurant Manager is a Skill Level 2 occupation and is thus exempt from labour market testing under IMMI 13/137.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Conclusion
For the reasons given above, the Tribunal finds that the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alison Mercer
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the person has listed on the nomination a person described in paragraph (6) (a); and
(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii) if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv) unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i) the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Natural Justice
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Appeal