Tribunal Sets Aside the Decision Under Review and Substitutes a Decision Approving the Direct Entry Nomination
Background Facts
The applicant, M. I Pty Ltd (name redacted), a large pizza franchise corporation, applied for approval of a nomination of a position under r5.19 on 21 October 2016 seeking to satisfy the criteria in the Direct Entry Nomination stream per r5.19(4). The nomination application was refused based on failure to satisfy r.519(4)(h)(ii)(D) as the delegate formed the view that the tasks of the position were that of Retail Supervisor and not Retail Manager.
The applicant is located at Mount Isa Queensland. ASIC records show M. I Pty Ltd (name redacted) was registered on 19 November 2014. The application for an employer nomination approval for the position of Retail Manager (ANZSCO 142111) under the Regional Sponsored Migration Direct Entry stream was lodged with the nominated salary of $52,000 per annum.
Issues to be Assessed for the Grant of the Nomination
Whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r5.19(4).
Rules
The application is compliant per r5.19(4)(a); the nominator is actively and lawfully operating a business in Australia per r5.19(4)(b); position is not labor-hire under r5.19(4)(c); terms of employment do not exclude the possibility of an extension per r5.19(4)(d); no less favorable terms and conditions of employment per r.519(4)(e); no adverse information r5.19(4)(f); satisfactory compliance with workplace relations laws r.519(4)(g); and tasks of the position, genuine need for the position and training requirements r.5.19(4)(h).
Argument
The application is compliant: r5.19(4)(a)
The application was in approved form accompanied by the fee and included written certification re-conduct that contravenes s245AR(1). R5.19(4)(a)(i) is met.
The application also identified a need to employ a paid employee to work in the position in form of a supporting statement. R5.19(4)(a)(ii) is met.
The nominator is actively and lawfully operating a business in Australia: r5.19(4)(b)
Based on the evidence before the Tribunal including financial statements, BAS returns, ASIC company details, and Pizza Hut franchise documentation, the Tribunal is satisfied that this requirement is met.
Position is not labour hire: r5.19(4)(c)
No evidence to suggest that the applicant’s business is involved in labour-hire. This requirement is therefore met.
Term of employment of the visa holder: r5.19(4)(d)
The nominee must be employed in the position for at least 2 years full time, and the terms and conditions do not expressly exclude the possibility of an extension.
Having regard to the BAS statements and financial statements, the business was the number one Pizza Hut in Queensland with 61% sales growth. It also has traded steadily during COVID-19.
The tribunal is satisfied the applicant has the financial capacity to employ the nominee for two years.
Evidence also shows that the nominee has been employed by the applicant in a full-time capacity since April 2018.
The contract dated 20 July 2020 indicates that the period of employment is two years upon the grant of a visa with the base salary of $54,160 per annum with hours of 40 hours per week. There is no term excluding extension of the contract.
The requirements in r5.19(4)(d) are met.
No less favourable terms and conditions of employment: r5.19(4)(e)
this is satisfied on the totality of the evidence before the Tribunal.
No adverse information: r5.19(4)(f)
no evidence to indicate that there is adverse information. As such, this requirement is met.
Satisfactory compliance with workplace relations laws: r5.19(4)(g)
No evidence that the applicant does not have a satisfactory record of compliance. Accordingly, this requirement is met.
Tasks of the position, genuine need for the position and training requirements: r5.19(4)(h)
As the position is in regional Australia, there must be a genuine need for the paid position which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee pursuant to the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant purchased the franchise with the arrangement that the then manager would continue for a six-month period. The former manager resigned after a week and the applicant immediately advertised the position, however no suitable applicants were identified. The applicant recruited internally by appointing a shift supervisor into the manager position. The incumbent remained in the position for two years but found the tasks of managing the business difficult which led the applicant to advertise for a new store/restaurant manager.
The applicant has also employed experienced managers from Brisbane via word-of-mouth contacts, but they only lasted 2 weeks.
The applicant employs the nominee’s husband and knew of the nominee. After hearing of the applicant’s attempts to recruit a long-term manager, the nominee applied for the position.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Retail Manager and for the tasks of that position. The applicant gave evidence at the hearing that the position is vital in order to manage and operate the store efficiently and is fully responsible for overseeing the operations of the Pizza Hut store.
The applicant told the Tribunal that the need to employ the nominee in the nominated position has arisen as a result of the difficulties the applicant has had in filling the position on a full-time and permanent basis. The applicant told the Tribunal that the position of store manager has full autonomy over the daily management and operations of the store.
The Tribunal accepts the evidence presented by the applicant and nominee that the tasks to be performed correspond to the tasks of Retail Manager (ANZSCO 142111).
Department records show that the nominee at time of application holds a Bachelor of Science degree in Hotel and Restaurant Management attained in the Philippines. At the hearing, the applicant and the nominee told the Tribunal that the nominee has worked in the position since 2018. The Tribunal is satisfied that she is qualified for the position.
The Tribunal is satisfied the applicant has made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant told the Tribunal that Mount Isa is a remote mining town with chronic shortage of skilled and experienced staff particularly for long term employment. Most workers who move to the area are attracted to highly remunerated jobs in the mines, resulting in skill shortages for other businesses in the region who need to recruit people with skills in areas such as retail management.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.
As such, r5.19(4)(h) is met as a whole.
Tentative conclusion: The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
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