Evidence
Evidence Before The Court
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Satisfactory compliance with workplace relations laws: r.5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The accepted oral evidence is that the applicant employs all its workers in the State of South Australia. The applicant provided detailed written submission in support of the application. Following the hearing, the applicant provided further written submissions under cover email dated 16 April 2020 addressing certain issues raised at the hearing - as follows:12.“… The term “satisfactory record” is not defined in legislation. The discretionary nature of regulation 5.19(4)(g) along with the lack of legislative guidance, gives the Tribunal scope to consider relevant policy guidelines and to consider the term in accordance with its ordinary and natural meaning. The Oxford Dictionary provides for a lesser standard associated with the term ‘satisfactory’ as its meaning is synonymous with: ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’. The term is similarly defined by the Cambridge Dictionary as “good or good enough for a particular need or purpose”. The common and ordinary interpretation of “satisfactory” in the context of this provision, clearly does not require an absolute or perfect record of compliance. 13.The ‘Assessment’ section of departmental policy states the following1: 14.Delegates can consider the nominator to have satisfied the requirements of regulation 5.19(3)(h) or 5.19(4)(g) (as relevant) unless they have received information that suggests the employer has not complied with workplace relations laws. The Department of Employment regularly provides this department with a list of employers who have been prosecuted for a breach of workplace relations laws or who the Department of Employment believes to have breached workplace relations laws but prosecution was either unwarranted or not possible.15.Current and former employees and members of the public can be alternative sources of information concerning the employer’s failure to comply with workplace relations laws.16.In assessing whether the nominator meets the requirements of 5.19(4)(g), departmental policy guidelines state that the requirement can be considered satisfied unless the decision maker has received information that suggests the employer has not complied with workplace relations laws. Due weight should be given to the fact that there has been no such information from a third party indicating the nominator has been subject to an investigation, penalty or any other legal proceedings by relevant regulatory bodies namely the Australian Taxation Office, Australian Securities and Investments Commission or Fair Work Commission.17.Migration and Refugee Division (MRD) Commentary provides the following guidance2:18.The term ‘workplace relations laws’ is not defined in the legislation, but appears to contemplate a wide range of laws relating to an employer’s duties and obligations in the workplace. They would include an employer’s compliance with State/Territory and Commonwealth laws relating to: • National Employment Standards• pay (minimum wages, deductions, superannuation, penalty rates and allowances)• leave (annual leave, sick leave, long service leave and maternity leave)• employee entitlements (maximum hours, overtime, flexible arrangements and breaks)• Workplace Health & Safety (safe workplaces, bullying and harassment) • workplace discrimination• termination (redundancy, unfair dismissal)19.Further to this, MRD Commentary provides useful and significant analysis on what constitutes a ‘satisfactory record’ of compliance with workplace relations laws (emphasis added)3: 20.The term ‘satisfactory record’ is not defined in the Regulations. On its face it appears to be a subjective test that does not contemplate or require a perfect record of compliance. Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable, though not outstanding or perfect’. In Nice Shoes Aust Pty Ltd v MIMIA, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirement for standard business sponsors in the since repealed r.1.20D(2)(c)(ii). In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia. Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record. 21.This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.22.There is also some support in Departmental policy and operational guidelines for such an approach. While the guidelines are brief on the interpretation of what constitutes a ‘satisfactory record of compliance’, related guidance can be found in the context of the Subclass 888 Business Innovation and Investment visa and the very similarly worded cl.888.214 which requires the visa applicant to have a ‘satisfactory record’ of compliance with certain Australian laws. 23.In assessing that criterion, policy suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period.195 The Department’s guidelines suggest some leniency may be appropriate in the first instance if it can be reasonably expected that the applicant may not have been fully aware of their Australian legal obligations, albeit subsequent breaches would not be considered with such leniency, in particular if the applicant had been made aware of the earlier breach by a relevant authority.196 Again, while the policy arises in a different context, the balancing factors identified would seem equally applicable in the assessment of compliance in the workplace relations context.24.The Explanatory Statement accompanying the Migration Amendment Regulations 2005 (No. 1) which introduced regulation 5.19(4)(g), provides that the purpose of the new provisions are to “enhance the integrity of the ENS and RSMS visas, in particular by requiring employers to have a satisfactory record of compliance with immigration law and relevant workplace relations law.” The particularly wide scope of workplace relations laws heavily signifies the purpose of this provision was intended to disqualify applicants who demonstrated serious and/or recurrent non-compliance with laws concerning workplace relations and would thus be likely to exploit or mistreat the nominee. 25.In Re Drake and Minister for Immigration and Ethnic Affairs (No 2), Brennan J emphasised the import of consistency in decision making, and concluded that while the AAT is an independent body, policy should generally be applied unless the policy is unlawful or there are “cogent reasons to the contrary”.4 The MRD commentary is in accordance with policy guidelines which themselves provide for consistency and equality of treatment, and thereby assists the Tribunal in making consistent decisions. It has now become accepted practice for the Tribunal to apply lawful policy unless there are cogent reasons to the contrary. 26.The Tribunal may err into legal error where a misunderstanding of the requirements of subsection 5.19(4)(g), would consequently limit its consideration of the facts. Severe detriment would arise in terms of the nominator’s business interests and ongoing operations were there to be an error in the interpretation of the provision and its application to the facts. Interpretation of key terms (i.e. “satisfactory record”) turns on the context of the legislative enactment in question, rather than solely considering the meaning attributed to the words in isolation. 27.Against this background and in light of relevant commentary and policy guidelines, a fair and reasonable approach ought to be taken in the assessment of this criterion. It is neither necessary for the Tribunal to consider whether the nominator has at some point ever breached any workplace relations law of the Commonwealth/State, nor is it a definitive factor. While an applicant’s breach(es) of workplace laws may be considered, it does not necessarily follow that the nominator cannot meet the requirement of satisfactory compliance. As previously conveyed by the Federal Court, a satisfactory record of compliance does not necessarily require an unblemished record and decision makers must have regard to the pertinent facts of the case.528.Indeed the High Court of Australia has ruled that “where statute confers a power, Parliament is taken to intend that that power will be exercised reasonably”.6 With regards to the legal standard of satisfaction to be met in connection with regulation 5.19(4)(g), we submit the intended meaning and correct approach to an assessment of ‘satisfactory’ in the context of 5.19(4)(g) is reasonable satisfaction. The standard ought to be objective, in that it would be met if a reasonable person in the Tribunal’s position would be satisfied that the nominator has an acceptable or sufficient record of compliance with Commonwealth or State laws pertaining to workplace relations. 29.The relevant level of satisfaction requires the Tribunal to reach an affirmative belief that the nominator has satisfactorily and materially complied with the laws of the Commonwealth and State or Territory in which it operates a business and employs employees in the business. On a fundamental basis, it surely was not legislative intention for a nomination to be refused in circumstances where there has been an inadvertent, minor or singular breach given that ‘workplace relations’ laws encompass such a broad scope with many different sections of Commonwealth and State laws. Minor breaches or those that constitute a single and non-recurring breach, should be reasonably disregarded in this assessment. 30.We respectfully submit that the Tribunal’s purpose is to make the correct or preferable decision on the evidence at hand, rather than to make arbitrary or precipitous adverse findings in terms of the nominator’s compliance with Commonwealth and State workplace relations laws - especially when these findings would be directly contrary to the nominator’s own testimony and/or would be made in the absence of prevailing evidence. The absence of appropriate reasons to support such a finding may be deemed as amounting to a failure to properly consider the case and the question to be determined. More importantly, the Tribunal should consider the evidence which supports the nominator’s assertion that it has a satisfactory record of compliance with workplace relations laws. 31.The relevant and appropriate question to consider is whether the level of compliance demonstrated by the nominator, is of such a level that the Tribunal is satisfied the employer will be able to fulfil its workplace obligations to the nominee. In this case, a search of decisions and orders on the Fair Work Commission website yields no results for the nominator. Similarly, searches of South Australian Employment Tribunal decisions do not reveal any instances of non-compliance related to VQN Corporation Pty Ltd or Mobara Japanese Restaurant (the business which it operates). 32.Further to this, there is no documentary record of the Fair Work Ombudsman having conducted any investigations or proceedings, recovered any monies, issued any caution/infringement notices or implemented any enforcement actions against the nominator. Ultimately, there is no third-party evidence to suggest the nominator has been found to be in breach of any laws of the Commonwealth or State relating to workplace relations, award breaches or underpayment of award wages. We therefore submit that there is there is no concrete or verifiable information before the Tribunal that demonstrates past or current substantive breaches, which would indicate the applicant does not have a satisfactory record of compliance with laws relating to workplace relations.33.The Tribunal may recall that Mr Vincent Nguyen, Director of VQN Corporation Pty Ltd, confirmed the company utilises software (MYOB) and engages the services of a bookkeeper/payroll officer in conjunction with an accountant (Van Hoc & Associates) to ensure payroll is processed in an accurate and timely manner. Mr Nguyen attests to the fact that super guarantee contributions for employees (whether full-time, part-time or casual) are automatically populated when their wages are entered in the system. The critical consideration in this case is that there is no information or evidence available to demonstrate VQN Corporation Pty Ltd has not been substantially compliant with Australian workplace laws and regulations. All eligible employees have been paid the required superannuation amounts to their designated super funds, and there have been no investigations or findings made by the Australian Taxation Office or Fair Work Commission in relation to its compliance with workplace relations laws. 34.Accordingly, we submit that the requirements of regulation 5.19(4)(g) are satisfied.35.With regards to regulation 5.19(4)(e), we note the Tribunal previously enquired about the base salary of any employee who had worked in the Restaurant Manager position prior to the nominee. Due to the length of time that passed, the director was unable to confirm exact details during the hearing. Having since sought and obtained clarification, Mr Nguyen kindly advises that Mr Joe Tropeano (the former business owner and proprietor) had not been engaged to work in a formal capacity. As part of negotiations for the business agreement, an informal and verbal arrangement was made for Mr Tropeano to help out with the restaurant’s management in the early stages of the ownership change. This assistance was voluntarily given to the nominator by Mr Tropeano based on his availability; he did not work set hours on an ongoing basis. The director reiterates that the terms and conditions of employment, including base salary, applicable to the position are no less favourable than that which would have been provided to an Australian citizen or permanent resident performing equivalent work at the same location. 36.As such, we submit that the requirements of regulation 5.19(4)(e) are met. …”1 Procedures and Advice Manual 3: Div5.3/reg5.19 – Approval of nominated positions (employer nomination) “Compliance with workplace relations laws”.2 Commonwealth of Australia, ‘Migration and Refugee Division Commentary Business visas’ 29 < 3 Ibid 102-103. 4 (1979) 2 ALD 634.5 Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252. 6 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [26] and [29] (French CJ)._________________________________________________________________________
Decision
Reasons for decision
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision under review to refuse the nomination.Stavros GeorgiadisMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and(b)be accompanied by the fee mentioned in regulation 5.37.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i) is made in accordance with subregulation (2); and(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i) is actively and lawfully operating a business in Australia; and(ii) directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i) the employee will be employed on a full-time basis in the position for at least 2 years;(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i) both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii) all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
