Need for an Employee
TABLE OF CONTENTS
No Time of Application/Time of Decision Dichotomy for Nominations
Exemptions for Age and English Recast
Skill Assessment Exemption for ENS Direct Entry
Ministers of Religion no Longer Exempt
Have One's Regulatory House in Order
The Revamp of the ENS Regime Which Came into Force on 1 July 2012
In Australian Brushware 1002975 [2013] MRTA 1863 (8 August 2013), the case had to be totally re-jigged at MRT stage in order to prove the need for an employee, including re-writing the contract. This is an important practice point as the re-jigging can occur at the Migration Review Tribunal hearing stage.
In Paleka 1416697 (Migration) [2015] AATA 3302 (19 August 2015) the reason for the original refusal was:
3.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. The substantive issue of concern to the delegate was whether the applicant required an ‘additional’ Retail Manager in circumstances where the delegate identified the business already employed a ‘specified person’ (as referred to in franchise agreement), and two Store managers.
But the owner went through all of these issues at the tribunal hearing and his nomination was approved.
10.He first owned an Oporto restaurant at City Cross, which was the first Oporto business in South Australia. Mr Paleka told me that the restaurant offers extended trading hours from 8am to midnight, Sunday to Thursday. The business employs a large number of staff of 25 to cover those hours.
11.Mr Paleka explained that within the business he employs the visa nominee as the store and operations manager. The visa nominee runs the store when he, the owner, is not present. There are two other managers at the store but they report to the visa nominee. Those positions are shift supervisors, but the visa nominee is more akin to an operations manager. Mr Paleka told me that the visa nominee attends to all the rostering and completes profit and loss information for him to review as the owner. The visa nominee undertakes all ordering and stock control, attending to the business side of the operations. Mr Paleka explained that the visa nominee has tertiary qualifications in economics, and he is trusted to focus on the financial side of the business.
12.Mr Paleka also told me that the visa nominee is primarily responsible for recruitment, but would be expected to discuss decisions with him before acting. Mr Paleka described the process used for firing staff, explaining the visa nominee would manage the process but the ultimate decision would be made at a joint meeting between the visa nominee, the owner and the staff member concerned. Mr Paleka retains ultimate financial control and the applicant would require his approval before any unusual or significant expenditure of money.
13.In relation to rostering, the roster is prepared by reference to the profit margins and projected sales. Rostering must be kept within a percentage for labour – and the visa nominee is responsible for this.
14.As for payroll, the business has contracted with a payroll company, but it is the visa nominee who logs on to that company’s system and enters the data required for the salaries to be paid. The visa nominee has all the dealings with the payroll company, and holds the necessary passwords.
- I explored with Mr Paleka his own role in the business. Mr Paleka explained he also works in the business from time to time, but is exploring purchasing another store elsewhere. In this regard, Mr Paleka explained that the Tranmere store is the third Oporto store he has operated, having previously operated Oporto stores in City Cross and Marion. These businesses have been sold. Mr Paleka explained that he has a need for an employed manager to allow him to pursue expansion elsewhere (Mr Paleka’s evidence at the hearing in this regard was more specific).
The tribunal accepted this position as genuine :
16.I have taken into account the delegate’s concerns arising from the terms of the franchise agreement requiring the franchisee to ensure that at least one ‘Specified Person or Store Manager is working at the Premises at all times while trading’. This provision does not in my view inform on whether there is a genuine need for the nominated position or whether the tasks of such a position correspond to a skill level 2 occupation. It is merely a requirement that the franchisee have a person known to the franchisor as a person with managerial authority for the operations of the premises on site at all times while trading. That may be the owner or the manager, or indeed a position that might be more akin to a shift supervisor when regard is had to the extended trading hours of the business that would make it impractical for a single employee to be present during all trading hours.
17.I accept the evidence of Mr Paleka. He provided detailed and convincing responses to my questions about the operations of his business and the role of the position held by the visa nominee.