Manjits Indian Restaurant (Mitali) Pty Ltd (Migration) [2023] AATA 2615 (7 August 2023)

Last Updated: 18 August 2023

Manjits Indian Restaurant (Mitali) Pty Ltd (Migration) [2023] AATA 2615 (7 August 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Manjits Indian Restaurant (Mitali) Pty Ltd

REPRESENTATIVE: Mr Surinder Singh (MARN: 1174421)

CASE NUMBER: 2204446

HOME AFFAIRS REFERENCE(S): OPF2021/8753

MEMBERS: Namoi Dougall

DATE: 7 August 2023

PLACE OF DECISION: Sydney

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 07 August 2023 at 4:17pm

CATCHWORDS
MIGRATION – sponsorship bar – failure to satisfy sponsorship obligation – equivalent terms and conditions – five employees’ salaries below award – change from annualised salary to actual hours worked – contracts not updated to reflect new payroll method and conditions – COVID disruptions to operations and working patterns – four employees paid correctly – one employee impermissibly converted from full-time to casual, and one small underpayment back-paid – employee’s mother’s health and employee’s uncertain availability – different advice from department and Fair Work Ombudsman officers – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140L(1)(a), 140M, 375A
Migration Regulations 1994 (Cth), rr 2.79(2), 2.89

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.
2. The applicant was approved as a standard business sponsor from 14 September 2012 to 14 September 2015 and then from 11 September 2015 to 11 September 2020
3. On 7 March 2022, the delegate decided to bar the applicant for a period of 2 years from sponsoring more people under the terms of the approved standard business sponsorship pursuant to s 140M on the basis that the applicant had breached sponsorship obligations.
4. The applicant’s director Mr Satvinder Singh appeared on behalf of the applicant before the Tribunal on 25 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Indra Pal Singh Kochar who is the HR Director.
5. The applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
8. Under s 140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
   • cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
   • cancelling the sponsorship approval for all classes to which the sponsor belongs;
   • barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
   • barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
9. For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
10. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

Does a circumstance for the taking of an action exist?

11. In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation.

Failure to satisfy a sponsorship obligation: reg 2.89

12. The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2).
13. The applicant was approved as a standard business sponsor from 14 September 2012 to 14 September 2015, and then from 11 September 2015 to 11 September 2020. During that time the applicant sponsored 22 visa applicants.
14. The applicant operates two restaurants, one in Wollongong and another in Corimal.
15. On 15 July 2021, the Department commenced monitoring the applicant to ascertain compliance with sponsorship obligations. After online searches, on 12 and 13 August 2021 a Departmental officer interviewed a director, Mr Satvinder Pal Singh, and four staff members, Mr Manraj Ruder (Cook at Wollongong), Ms Ankitaben Patel (Cook at Corrimal), Ms Mohni Mohni (Restaurant Manager at Corrimal) and Mr Sparsh Bhasin (Restaurant Manager at Wollongong).

Initial Interviews and further information

16. At his interview, the director of the applicant Mr Singh relevantly stated as follows:
    • The applicant owns two restaurants one in Wollongong and the other in Corrimal. The opening hours are 12 noon to 12:30 and then 16:30 to 21:30. The staff come in arrive between 11:30 and 12 noon and leave between 14:00 and 14:30 and in the evening they arrive between 16:15 to 16:30 and leave any time after 21:00 and sometimes after 10:30.
    • His spouse and his brother take care of the wages and HR matters. Pay all entitlements, superannuation and taxation. Have a company that assists them and their accountant. The staff are paid on Tuesday for a Sunday to Saturday week and payslips are issued within 24 hours. The wages are the Award.
    • There are two sponsored Cooks, Ms Patel and Mr Ruder. Ms Mohni usually works in Wollongong but is stuck in Victoria, Mr Hassan is in catering, Mr Bhasin is a manager and there is another Cook in Corrimal who is stuck in India.
    • The applicant provides accommodation in a 5 to 6 bedroom home within walking distance to the restaurants and the staff only have to pay for utilities. There are only four that are there at the moment, as one is stuck in India and another in Victoria.
17. At his interview, Mr Bhasin relevantly stated as follows:
    • Mr Bahsin listed his duties as the Restaurant Manager. He primarily works at the Wollongong restaurant. The other Manager is Mr Hassan who will sometimes work at Corrimal. He has worked at the restaurant for 7 years since it opened
    • He works 38 hours, and his houses are 11:30 or 12 noon to 14:30 and then 16:30 or 17:00 until 21:30 five days a week. His days off are Mondays and Tuesdays. His salary last year was $55,000 and he is now paid $55,500. He and Mr Hassan check the timesheets and sign on a weekly basis. He has not had to work overtime as the family are there. His leave entitlements are included on the automated payslips as are his superannuation and taxation.
    • He is paid weekly not his Westpac account around $850 after tax, $1,054.24 before tax.
    • He has taken a loan of $8,000 from his boss and asked that $100 be deducted from his wages.
    • His boss provides accommodation, and he only has to pay $50 a week for utilities.
18. At his interview, Mr Ruder relevantly stated that:
    • He is a cook and listed his duties as a Cook at the Corrimal restaurant. His boss is in everyday. He does his rounds and checks the cameras he has installed in the kitchen and if it is busy, he will help out.
    • He works 38 hours a week from 11:30 to 14:30 and then 16:30 to 21:30, or 21:30 and sometimes 20:30. He works five days a week and mostly has Sunday and Mondays off. The other boss and staff are there for changeover.
    • He is currently paid, from last month, $888 after tax on a weekly basis into his bank account and his payslip is emailed to him. His annual slay is now $56,000. He can do overtime if needed but his boss does want anyone doing overtime. There are no deductions.
    • He lives in Lakemba with his family and travel each morning to Corrimal.
19. At her interview, Ms Mohni relevantly stated as follows:
    • She is stuck in Victoria as they closed the boarders on 3 June and 26 June. She travelled to Victoria as her daughter was having stomach surgery.
    • She started in February 2016 and worked at Corrimal until 2019 and then she started to work in Wollongong as the restaurant was busy. She now works between both restaurants and is at Corrimal 3 to 4 days.
    • Her duties include functions as well as rostering, takeaway and dining, and organising staff. She works 40 hours per week. She does a split shift 12:00 to 14:30 and then 17:30 to 21:30 for 5 days and will work 6 days if there is a party. She is paid extra for weekend and overtime as well as public holidays. She has had no problems with her leave entitlements, and she checks that her superannuation and taxation are paid.
    • She is paid weekly on Tuesday into her bank account around $860 to $865 and annually $56,000.
    • Her boss provides her accommodation, and she only pays for utilities.
20. At her interview, Ms Ankitaben Patel relevantly stated as follows:
    • She is a Cook at the Corrimal restaurant, and she listed her duties as a Cook. She started work in 2015.
    • She works 38 hours a week from 11:30 to 14:30 and then 16:30 to 21:30 five days a week. She takes off Sunday and Monday. He current salary is $55,000. She does not usually work overtime as she has a daughter. She has had no issues accessing leave and her superannuation and taxation are paid regularly.
    • She is paid every week on Tuesday into her bank account and payslips are emailed to her. Her salary is $889 and $1,036 before tax.
    • She rents he own home in Corrimal.
21. On 13 August 2021, the Department requested information from the applicant requesting records and information, including information on the following five employees: Mr Sparsh Bhasin; Mr Manraj Ruder; Ms Mohni Mohni; Mr Ui Hassan Rizwan; and Ms Ankitaben Rahul Patel (the five employees).
22. On 3 September 2021, the applicant responded to the Department’s request and provided: nomination receipts; employment contracts and memos of salary increases; rosters and timesheets; job descriptions; market salary information; PAYG for the financial year ending 30 June 2021; leave records; bank statements for the applicant’s CBA Business Transaction account from 1 March 2021 to 30 June 2021 which indicates regular payments of salaries including to the five employees.

Subsequent interviews

23. On 28 October 2021, Ms Mohni was interviewed again and on 4 November 2021, Mr Bhasin was interviewed again in relation to an allegation Ms Mohni was working as a Cook which both denied.
24. At her interview on 28 October 2021, Ms Mohni also stated as follows:
    • She had returned from Melbourne in September 2021. She has worked at the applicant’s restaurant for 6 years and never as a cook. She works at the Corrimal restaurant when there are COVID-19 related issues and no staff. Mr Hassan is the manager at Corrimal.
    • She works with Mr Bhasin at the Wollongong restaurant which has two dining areas and needs two managers.
    • Her wages are paid in full to her account. She does not have internet banking and uses Western Union for transfers. The applicant has also provided her with accommodation, and she only pays for utilities.
25. At his interview on 4 November 2021, Mr Bhasin also stated as follows:
    • Mr Patel and his bother take care of Wollongong. Mr Hassan is a manager but is only working 2 days a week, but there is talk of going full-time from 1 December 2021. Mr Hassan is also a Manager at Wollongong and Ms Mohni at Corrimal.
    • He denied that he has paid for his visa. He has worked there for almost 7 years and is given a free accommodation and food. He is not aware of anyone paying their wages back.
    • Mr Bahsin was asked about a number of payments going to and from his bank account to others including large deposits. He stated that he has a lot of friends, and they transfer money to each other as loans. He shops for friends, or they shop for him. He does not work anywhere else.

First Notice of Intention to Take Action (the first Notice)

26. On 5 January 2022, the Department issued the first Notice. In relation to r.2.89 failure to satisfy sponsorships obligations, in particular, the obligation in r.2.79 to ensure equivalent terms and conditions. The first Notice for each of the five employees stated as follows:

Sparsh Bhasin

• Mr Bhasin was nominated by the applicant as a Restaurant Manager on a nominated annual salary of $55,000 ($27.83 on a 38 hour week) and was granted his Subclass visa on 20 January 2017.
• The employment contract between Mr Bhasin and the applicant indicated that Mr Bhasin’s annual salary would be $55,0000 for a 38 hour week. Full-time work included a combination of 3 weekday shifts on Saturday and Sunday and the salary factored in the appropriate loadings for weekend work. The Notice stated that this is an annualised arrangement under the Restaurant Industry Award 2020 (the Award). The 2010 Award has the same pay terms and conditions and was only updated dues to the global pandemic.
• The first Notice listed the minimum annualised salaries for a level 5, Food and Beverage Supervisor for the financial years ending 30 June 2017 to 30 June 2021 and for the periods, 1 July 2021 to 31 October 2021 and 1 November 2021 to the date of the first Notice. Those salaries ranged upwards from $55,896.10 to $62,145.20.
• The employment contract between Mr Bhasin and the applicant dated 18 January 2021 indicated that his annual salary was $56,500.
• Mr Bhasin’s income statement for the tax year ending 30 June 2021 indicated a gross salary of $52,005.55 which is not reflective of the income statement.
• Mr Bhasin’s final payslip for the financial year ending 30 June 2021 indicated that Mr Bhasin’s year to date salary amount was $56,834.75.

27. In relation to the above, the first Notice stated that the annual salary is below the required salary under the Award and the delegate considered that the applicant had not met the obligation to ensure equivalent terms and conditions of employment for the sponsored visa holder, Mr Bhasin as he is receiving less than an equivalent worker would receive under the Award.

Manraj Ruder

• Mr Ruder was nominated by the applicant as a Cook on a nominated annual salary of $55,000 ($27.83 on a 38 hour week) and was granted his Subclass 457 visa on 17 November 2015.
• The employment contract between Mr Ruder and the applicant dated 1 July 2019 indicated that Mr Bhasin’s annual salary would be $55,0000 for a 38 hour week. Full-time work included a combination of 3 weekday shifts on Saturday and Sunday and the salary factored in the appropriate loadings for weekend work. The Notice stated that this is an annualised arrangement under the Restaurant Industry Award 2020 (the Award). The 2010 Award has the same pay terms and conditions and was only updated dues to the global pandemic.
• The first Notice listed the minimum annualised salaries for a Cook (Level 5, Grade 4, Tradesperson) for the financial years ending 30 June 2017 to 30 June 2021 and for the periods, 1 July 2021 to 31 October 2021 and 1 November 2021 to the date of the first Notice. Those salaries ranged upwards from $55,896.10 to $62,145.20.
• Mr Ruder’s income statement for the tax year ending 30 June 2021 indicated a gross salary of $51,821.34 which is not reflective of the income statement.
• Mr Ruder’s final payslip for the financial year ending 30 June 2021 indicated that Mr Ruder’s year to date salary amount as $56,834.75.

28. In relation to the above, the first Notice stated that the gross salary set out of the income statement for the financial year ending 30 June 2021 was a significant underpayment to the relevant amount set out in the Award. The first Notice acknowledge that Mr Ruder had been interstate since 3 June 2021 interstate with salary but this amount of leave would not reduce the salary to that in the income statement. Further, the delegate considered that the applicant had not met the obligation to ensure equivalent terms and conditions of employment for the sponsored visa holder, Mr Ruder as he is receiving less than an equivalent worker would receive under the Award.

Mohni Mohni

• Ms Mohni was nominated by the applicant as a Restaurant Manager on a nominated annual salary of $55,000 ($27.83 on a 38 hour week) and was granted her Subclass visa on 5 September 2015.
• The employment contract between Ms Mohni and the applicant indicated that Ms Mohni’s annual salary would be $55,0000 for a 38 hour week. Full-time work included a combination of 3 weekday shifts on Saturday and Sunday and the salary factored in the appropriate loadings for weekend work. The Notice stated that this is an annualised arrangement under the Restaurant Industry Award 2020 (the Award). The 2010 Award has the same pay terms and conditions and was only updated due to the global pandemic.
• The first Notice listed the minimum annualised salaries for a level 5, Food and Beverage Supervisor for the financial years ending 30 June 2017 to 30 June 2021 and for the periods, 1 July 2021 to 31 October 2021 and 1 November 2021 to the date of the first Notice. Those salaries ranged upwards from $55,896.10 to $62,145.20.
• The employment contract between Ms Mohni and the applicant dated 11 January 2021 indicated that his annual salary was $56,500.
• Ms Mohni’s income statement for the tax year ending 30 June 2021 indicated a gross salary of $46,706.34 which is not reflective of the income statement.
• Ms Mohni’s final payslip for the financial year ending 30 June 2021 indicated that Ms Mohni’s year to date salary amount was $51,070.79.

29. In relation to the above, the first Notice stated that the gross salary set out of the income statement for the financial year ending 30 June 2021 was a significant underpayment to the relevant amount set out in the Award. The first Notice acknowledged that Ms Mohni had been interstate since 3 June 2021 interstate without salary, but this amount of leave would not reduce the salary to that in the income statement. Further, the delegate considered that the applicant had not met the obligation to ensure equivalent terms and conditions of employment for the sponsored visa holder, Mr Mohni, as she is receiving less than an equivalent worker would receive under the Award.

Rizwan Hassan

• Mr Hassan was nominated by the applicant as a Restaurant Manager on a nominated annual salary of $55,000 ($27.83 on a 38 hour week) and was granted his Subclass visa on 6 July 2017.
• The employment contract between Mr Hassan and the applicant indicated that Mr Hassan’s annual salary would be $55,0000 for a 38 hour week. Full-time work included a combination of 3 weekday shifts on Saturday and Sunday and the salary factored in the appropriate loadings for weekend work. The Notice stated that this is an annualised arrangement under the Restaurant Industry Award 2020 (the Award). The 2010 Award has the same pay terms and conditions and was only updated dues to the global pandemic.
• The first Notice listed the minimum annualised salaries for a Level 5, Food and Beverage Supervisor for the financial years ending 30 June 2017 to 30 June 2021 and for the periods, 1 July 2021 to 31 October 2021 and 1 November 2021 to the date of the first Notice. Those salaries ranged upwards from $55,896.10 to $62,145.20.
• The employment contract between Mr Hassan and the applicant dated 19 March 2021 indicated that his annual salary was $56,500.
• Mr Hassan’s income statement for the tax year ending 30 June 2021 indicated a gross salary of $51,820.69.
• Mr Hassan’s final payslip for the financial year ending 30 June 2021 indicated that Mr Hassan’s year to date salary amount was $56,649.79 which is not reflective of the income statement.

30. In relation to the above, the first Notice stated that the annual salary is below the required salary under the Award and the delegate considered that the applicant had not met the obligation to ensure equivalent terms and conditions of employment for the sponsored visa holder, Mr Hassan as he is receiving less than an equivalent worker would receive under the Award.

Ankitaben Patel

• Ms Patel was nominated by the applicant as a Restaurant Manager, when actually Ms Patel was nominated as a Cook, on a nominated annual salary of $55,000 ($27.83 on a 38 hour week) and was granted her Subclass 457 visa on 10 December 2012 and again on 21 June 2017.
• The employment contract between Ms Patel and the applicant indicated that Ms Patel’s annual salary would be $55,0000 for a 38 hour week. Full-time work included a combination of 3 weekday shifts on Saturday and Sunday and the salary factored in the appropriate loadings for weekend work. The Notice stated that this is an annualised arrangement under the Restaurant Industry Award 2020 (the Award). The 2010 Award has the same pay terms and conditions and was only updated dues to the global pandemic.
• The first Notice listed the minimum annualised salaries for a Cook (Level 6, Grade 5 Tradesperson) for the financial years ending 30 June 2017 to 30 June 2021 and for the periods, 1 July 2021 to 31 October 2021 and 1 November 2021 to the date of the first Notice. Those salaries ranged upwards from $57,378.10 to $63,800.10.
• Ms Patel’s income statement for the tax year ending 30 June 2021 indicated a gross salary of $52,018.87.
• Ms Patel’s final payslip for the financial year ending 30 June 2021 indicated that Ms Patel’s year to date salary amount was $56,847.87 which is not reflective of the income statement.

31. In relation to the above, the first Notice stated that the annual salary is below the required salary under the Award and the delegate considered that the applicant had not met the obligation to ensure equivalent terms and conditions of employment for the sponsored visa holder, Mr Patel as he is receiving less than an equivalent worker would receive under the Award.
32. The Tribunal notes that the first Notice refers to both Mr Ruder and Ms Mohni being in lockdown in Victoria. There is nothing on the files to indicate that Mr Ruder was in lockdown in Victoria.
33. The first notice also set out circumstances which in relation to the provision of false and misleading documents is in breach of reg.2.90. This allegation was not pursued in the decision.

Response to the first Notice

34. On 19 January 2022, the applicant responded to the first Notice. In relation to the salaries for each of the five employees referred to in the first notice the applicant submitted that the gross salary for each included an allowance. A copy of the applicant’s payroll employee summary for each of the employees for the tax year ending 30 June 2021 was also provided and the applicant stated that the amount included on the payroll employee summary for the gross salary equalled the amount on the final payslip. The salary payments (the first figure set out below) and allowances (the second figure set out below) for each employee as set out the submission and income statements were as follows:
    • Mr Bhasin $52,055.55 plus $4,594.99 = $56,650.54. Further, in relation to Mr Bhasin, it was submitted that earlier in the year due to COVID-19 restrictions his salary was changed from full-time to casual hours. Also, he took out a loan of $8,000 which he has agreed to repay through a deduction from his salary of $100 per week.
    • Mr Ruder $51,821.34 plus $4, 829.20 = $56,650.54
    • Ms Mohni, $46,706.34 plus $46,364.45 = $51,070.79. It was also submitted that Ms Mohni was impacted due to leave without pay she took when she went to Melbourne. It was processed according to Ms Mohni’s request and a copy of the leave balances was provided.
    • Ms Hassan $51,820.69 plus $5,014.06 = $56,834.75
    • Mr Ankitaben Patel $52,018.67 plus $4,829.20 = $56,847.87
35. It was further submitted that, to ensure the applicant was in line with Fair Work policies, the applicant engaged Employsure who provides constant support and up-to-date news on workplace policies and regulations.
36. The applicant in the submission asked how the Department had come by the annualised hourly figures as they have pushed the annual salaries higher than anticipated.

Information provided after the first Notice

37. On 19 January 2022, the Department wrote to the applicant requesting information on the allowances for the employees and how they were calculated. The letter also requested information in relation to loans and dates as to when Mr Bhasin was employed on a casual basis and when he will be again employed full-time.
38. On 22 January 2022, the applicant provided a further submission in which it was stated that the allowances for each of the employees are additional difference that is paid to ensure each staff member are paid their full annual salary of $55,000 or whatever the agreed salary is. The submission set out an example of calculations for weekdays and Saturday penalty rates as well as the split shift allowances.
39. In relation to the loan provided to Mr Bhasin, it was submitted that the applicant provided a no loan response to the Department’s question as it applied to the period 1 March 2021 to 30 June 2-21 and the loan had been provided to Mr Bhasin after that.
40. It was submitted that Mr Bhasin commence casual employment on 25 July 2021 and returned to full-time employment on 5 December 2021. An offer of full-time employment dated 1 December 2021 was provided, as well as payslips for the first period on causal employment and then for when Mr Bhasin returned to full-time employment.

Second Notice of Intention to Take Action (the second Notice)

41. On 12 February 2022, the Department issued the first Notice. In relation to r.2.89 failure to satisfy sponsorships obligations, in particular the obligation in r.2.79 to ensure equivalent terms and conditions. The second Notice set out what was stated in the first Notice as to Mr Bhasin’s salary and the applicant’s response set out above. The second Notice then set out the requirements for annualised salary arrangements as they appear in cl.20 of the Award. The second Notice refers to the applicant employing Mr Bhasin for a period on a causal basis. However, it was stated that the provisions for flexibility for the hospitality industry during the COVID-19 pandemic put into place by the Fair Work Ombudsman and those implemented in relevant instruments by the Minister and Department to reflect the FWO flexibility only applied for reduced hours on a part-time basis and not a casual basis. The applicant contracted with Mr Bhasin on a casual basis form 25 July 2021 to 6 December 2021.
42. On the above, the Department consider that the applicant had not met its obligations to ensure equivalent terms and conditions of employment for Mr Bhasin as he was receiving less favourable conditions than an Australian equivalent worker as:
    • The hospitality restrictions were partly lifted allowing restaurant to return to dining service on 10 September 2021 and it would be considered that a Restaurant Manage would have returned to full-time work.
    • When Mr Bhasin returned to full-time work on 6 December 2021 his payslip showed an hourly rate of $30.68 when he was entitled to $31.45 from 1 November 2021.
    • The new employment contract dated 18 January 2021 referred to the term and conditions of the contract dated 1 July 2019 which was a much lower salary then required under the Award.

Response to the second Notice

43. On 28 February 2022, the applicant responded to the second Notice. It was submitted that the applicant’s hourly rate under the Award was $24.54, but was calculated on a casual rate of $30.68 per hour. It was an administrative error that he was paid a casual rate and not a part-time rate. Mr Bhasin during the period 25 July 2021 to 30 October 2021 was only working 10 hours per week which did not include weekend work. However, he was continued to be paid the higher casual rate which meant he was overpaid $5.41 per hour which is a total of $822.40. Despite the error, the applicant has not been asked to repay that amount.
44. It was further submitted that it was an administrative oversight that the employment contract for Mt Bhasin was on a casual basis. The COVID-19 pandemic impacted restaurant businesses, particularly dine in significantly, and the applicant operated on limited employees with extreme caution. At the pandemic’s peak, the applicant was struggling to remain afloat and to provide employment. The second wave of COVID-19 in the Wollongong area battered most businesses, and it was a very stressful time where the applicant was forced to convert local employees to casual on a temporary basis until COVID-19 subsided. The applicant realises the administrative error and has corrected it including data purification of their systems, system alerts to ensure that sponsor’s payroll is not inadvertently altered. Mr Bhasin has been credited his part-time entitlements, including leave and superannuation and the additional above rate payments for 5 weeks was credited to his account.
45. It was also submitted that the applicant’s HR person was undergoing cancer treatment from 15 July 2021 and was out of action during the above period. It was also submitted that the applicant is a credible 457/482 sponsor and has recruited local workforce which it has trained, and even a minor negative impact as a result on monitoring would seriously impact the applicant’s growth and subsequent employment of local workforce. A current payslip and a corrected current payslip were provided.

Has the applicant failed to satisfy sponsorship obligations

46. Reg.2.79(2) relevantly requires that a sponsor must ensure that the terms and conditions of employment provided to the sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
47. The regulations also provide that:

...a set of terms and conditions of employment for a person (the first set) is less favourable than another set of terms and conditions of employment for a person if:

(a) the earnings provided for in the first set are less than the earnings provided for in the other set; and

(b) there is no substantial contrary evidence that the first set is not less favourable than the other set.

48. At the hearing, Mr I Singh stated Mr Bhasin and Mr Hassan Grade 4, level 5 and Mr Ruder and Ms Patel were on Grade 4, level 3 and Ms Mohni was on level 4, grade 3. All employees were rostered Tuesdays to Saturdays there was no overtime in the restaurant and the only penalty rates were for Saturdays.
49. On 4 August 2023, Mr S Singh provided a submission. It was submitted that the business has been operating successfully for over 40 years and had had not issues with the Department until 2019. Over that period, the business had followed the annualised salary system paying a fixed annual salary regardless of the number of hours worked each week. However, in October 2018 the Fair Work Ombudsman (FWO) conducted an audit of the business in response to a complaint from a former employee and it was submitted as follows:
    • FWO requested detailed information on number of hours, hourly rates, start and finish times and additional payments.
    • The applicant found it challenging to provide hourly breakdowns as their system was annualised wages.
    • To address FWO’s concerns and to ensure compliance, FWO suggested the applicant use the Restaurant Industry Award (the Award) which the applicant objected to as their intention was to pay above the Award. Further, the original payslips showed hours worked, split shift allowance and any reasonable overtime but FWO wanted hours with corresponding hourly rates
    • The applicant moved from an annualised salary system to an hourly rate system so that each employee’s pay is calculated on their actual hours worked with separate entries for overtime and split shirt allowance where eligible. The old payroll system is now entirely redundant.
    • Despite switching the payment method, the applicant still ensured that the employee’s total earnings remained above the Award and aligned with market rates.
    • Since July 2019, the applicant has had a consistent roster for full-time employees from Tuesday to Saturday which has streamlined operations and ensured predictability for the employees.
50. Later in the submission, the applicant provided tables for pay rates for employees in the positions of Restaurant Managers and Cooks which indicates that the applicant’s hourly rate is slightly higher than the Award. The submission referred to the employee’s ATO tax advice which indicates that each employee is receiving an allowance to bring their salaries in line with the nominated salary. The tables are as follows:
51. In relation to Restaurant Managers.

Position :	Manger	Level:	5	Grade :	4
Date When Rate Changeds	FWO (M-F)	Ours (M-F)	FWO (SAT)	Ours (SAT)	FWO (SUN)	Ours (SUN)
1/01/2018	Annualised salary Before FWO
1/07/2018	Annualised salary Before FWO
1/07/2019	$24.12	$24.42	$30.15	$30.53	$36.18	$36.63
23/01/2020	$24.12	$24.42	$30.15	$30.53	$36.18	$36.63
1/02/2021	$24.54	$24.70	$30.68	$30.88	$36.81	$37.05
11/08/2021	$24.54	$24.70	$30.68	$30.88	$36.81	$37.05
1/11/2021	$25.16	$25.40	$31.45	$31.75	$37.74	$38.10
11/08/2022	$25.16	$25.40	$31.45	$31.75	$37.74	$38.10
1/10/2022	$26.31	$27.69	$32.89	$34.61	$39.47	$41.54
1/07/2023	$27.83	$29.29	$34.79	$36.21	$41.75	$43.14

Employee L:5 G:4 Mohni, Sparsh Bhasin & Rizwan Ul

Date When Pay rate comes into effect : provided by Employesure

52. In relation to Cooks.

Position :	Cook	Level:	4	Grade :	3
Date When Rate Changeds	FWO (M-F)	Ours (M-F)	FWO (SAT)	Ours (SAT)	FWO (SUN)	Ours (SUN)
1/01/2018	Annualised salary Before FWO
1/07/2018	Annualised salary Before FWO
1/07/2019	$22.70	$24.42	$28.38	$30.53	$34.05	$36.63
23/01/2020	$22.70	$24.42	$28.38	$30.53	$34.05	$36.63
1/02/2021	$23.09	$24.70	$28.86	$30.88	$34.64	$37.05
11/08/2021	$23.09	$24.70	$28.86	$30.88	$34.64	$37.05
1/11/2021	$23.67	$25.40	$29.59	$31.75	$35.51	$38.10
11/08/2022	$23.67	$25.40	$29.59	$31.75	$35.51	$38.10
1/10/2022	$24.76	$27.69	$30.95	$34.61	$37.14	$41.54
1/07/2023	$26.18	$29.29	$32.73	$36.21	$39.27	$43.14

Employee L:4 G:3 Ankitaben & Manaj Ruder

Date When Pay rate comes into effect : provided by Employesure

53. On the evidence, the Tribunal is satisfied that no Australian citizen or permanent resident were employed in the positions of Restaurant Manager or Cook at the same levels and grades as set out above. The Tribunal has considered cl.11 which is the same in each of the employees’ contracts and that this is an annualised salary agreement between the applicant and each employee as the annual salary includes entitlements owing under the Industrial Instrument or any other industrial instrument or law, including any entitlement to minimum wages, allowances, overtime, penalty rates and annual leave loading. However, the Tribunal has taken into account the applicant’s submission, and the employee’s payslips and tax information which indicates that, despite the employment contracts, the applicant’s employees are being paid on hourly rates and allowance. Further, even if the five employees the subject of the first and second Notices are being paid in accordance with annualised salary arrangements, it does not of itself mean that an Australian equivalent worker would be employed under the same arrangements. The minimum requirement would be that an Australian equivalent worker would be employed in accordance with the Award, that is, they would be paid in accordance with the Award the minimum rate, overtime and other penalties and allowances together with leave entitlement which the Tribunal is satisfied, with the exception of Mr Bhasin, the applicant has been doing as set out below.
54. The Tribunal is concerned that in light of the above, the employee’s contracts of employment have not been updated to reflect the new pay roll method and terms and conditions.
55. The Tribunal compared the rates provided in the submission with the payslips that had been provided to the Department and Tribunal for each of the five employees. In relation to all of the employees, with the exception of Mr Bhasin for the period 25 July 2021 to 6 December 2021, they had been paid in accordance with the Award as the minimum rates have been applied correctly in accordance with the relevant level and grade. There was no overtime as each employees’ shift was over before 10:00 pm, the correct Saturday penalty rate was applied, and they were all paid a split shift allowance. Therefore, in relation to the four employees, and Mr Bhasin outside the period 25 July 2021 to 6 July 2021, the applicant has satisfied the sponsorship obligation in r.2.79.
56. In relation to Mr Bhasin, during the period of 25 July 2021 to 6 December 2021, he was employed on a casual basis. The delegate found that, as employment was not on a part-time basis, it was contrary to the COVID-19 flexibility provisions introduced by the FWO and the Department. The Department was not precise as to what flexibility provisions it was referring to, however, the flexibility provisions in Schedule 1 which applied from 1 July 2021 to 27 September 2021 allowed employers to reduce the normal hours of full-time workers to a minimum of 22.8 hours and for part-time to a minimum of 60% of their guaranteed hours.
57. There were no flexibility provisions allowing full time workers to be employed on a casual basis, and nomination requirements were that sponsored employees were to be employed on a full time basis. Therefore, the Tribunal is satisfied that the applicant did not comply with the Award in relation to Mr Bhasin for the period 25 July 2021 to 6 December 2021 by maintaining him as full time employee, although on reduced hours. The Tribunal is also satisfied that there was a very minor underpayment from 1 November 2021 to 6 December 2021 as referred to below.
58. Given the above, the Tribunal finds that the applicant failed, in relation to Mr Bhasin during the period 25 July 2021 to 6 December 2021, to satisfy the sponsorship obligation in r.2.79.
59. The Tribunal notes however, that during the period from 25 July to 6 December 2021, Mr Bhasin was paid at the higher casual rate of $30.68 per hour which meant he was overpaid $5.41 per hour with the total overpayment being a total of $822.40 which he has not been asked to repay. Further, as conceded by the delegate, the applicant reinstated all of Mr Bhasin’s entitlements in relation to leave and superannuation.
60. First payslip after returning to full time, that is from 6 December 2021, indicated that Mr Bhasin was being paid a rate not equivalent to the increase made on 1 November 2021 to the Award rate. The applicant back paid an amount of $38.50.
61. Accordingly, the Tribunal satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

Action to be taken

62. For these reasons, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken.
63. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

The past and present conduct of the person in relation to Immigration

64. The applicant has cooperated with the Department throughout the monitoring process and provided to the Department and the Tribunal all requested information.
65. It was submitted in the submission that in July 2012, the applicant was monitored by the Department but cleared of all allegations. Provided was a very detailed submission provided to the Department in response to a NOITTA which indicates that the applicant cooperated with the Department at that time. Department records indicate that the outcome of the monitoring was that the applicant paid its infringement. The Tribunal is concerned that the application was not entirely accurate as to the outcome of the monitoring but does take into account the length of time that has elapsed.
66. The applicant also set out in the submission the steps it has taken to ensure its operations remain compliant including changing accountants, investing in new accounting software, having a dedicated HR person, using at FWO’s suggestion EmploySure for advice and using biometric system to capture start and finish times and mandatory break intervals.

The number of occasions on which the person has failed to satisfy the sponsorship obligation

67. The Tribunal has found that the applicant has failed to satisfy the sponsorship obligations in r.2.79(2) in relation to Mr Bhasin during the period 25 July 2021 to 6 December 2021 in two instances.

The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred

68. The applicant failed to maintain Mr Bhasin as a full time employee, although on reduced hours from 25 July 2021 to 6 December 2021, and there was a small underpayment. The period is just over four months and during the COVID-19 pandemic.
69. It was submitted in the submission that the decision to change Mr Bhasin’s employment status from full time to casual was due to a number of unfortunate circumstances. During the lockdown period, the restaurants had no physical customers but relied purely on takeaway and deliveries for over 2 years. At the peak of the pandemic, Mr Bhasin’s mother was diagnosed with late stage liver cancer which impacted his physical and mental health. As his mother’s condition deteriorated, Mr Bhasin was uncertain as to his work commitments and started to take unplanned and random leave and then resigned. The applicant wished to support him, so Mr Bhasin did not suffer from being unemployed and not being able to travel to India. After discussions, it was agreed that he would continue to work but only for certain hours. Advice was sought form the Department and FWO, but different helpline officers gave differing advice. Therefore, the applicant sought advice from EmploySure and on their suggestion, Mr Bhasin’s employment became on a casual basis. The applicant ensured Mr Bhasin retained his annual and sick leave. A letter from Mr Bhasin dated 2 August 2023 supports the applicant’s submission.
70. It was submitted in the submission that the breach was only for a period of 4 months.

The period of time over which the person has been an approved sponsor

71. The applicant was most recently approved as a standard business sponsor on 11 September 2015. This approval was for a period of 5 years and is valid until 11 September 2020. Prior to the current agreement, the applicant was approved as a sponsor for a period of 3 years from 14 September 2012. Information on the decision record indicates that the applicant has had 25 nominations approved by the Department under these agreements.

Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

72. The Tribunal considers that the applicant’s failure did impact Mr Bhasin’s employment terms and conditions, however, the period of time was short and the applicant ensured that the applicant’s leave and superannuation entitlements were reinstated, and the small underpayment repaid.

Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

73. The Tribunal does not consider that the applicant’s failure to satisfy the sponsorship obligation in r.2.79 was intentional, reckless or inadvertent as the applicant had made efforts to ensure that all minimum payments, penalty rates and shift allowances were paid. Further, the period during which the applicant failed to satisfy sponsorship obligations was during the COVID-19 Pandemic.

Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

74. The applicant has cooperated with the Department.

The number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations

75. Other than the sponsorship obligations in r.2.79(2), the Tribunal is not aware of any other sponsorship obligations that have been breached.

Any other relevant factors

76. The applicant has run the restaurants for a period of over 20 years. It was submitted that if the ban is not overturned, it will directly impact the three Subclass 186 applicants who have ongoing matters before the Tribunal. Further, the applicant’s business will suffer due to skills shortages, and if the applicants have no future employment they will leave. If all applicant’s leave. the applicant’s revenue will decrease by 30%. It was further submitted that for the past eight years, the applicant has provided accommodation to their employees and families within 3 minutes of the restaurant. The accommodation allows employees to have short rests and pick up personal items and check in on partners. Currently there is only one Subclass 482 employee using the accommodation and the others have moved out in the past 12 months due to family preferences.
77. It was further submitted that the applicant creates local jobs, recruits and trains local workforce.

Certificate pursuant to s.375A

78. On 17 July 2023, the Tribunal wrote to the applicant advising that community information on the Department’s file indicates that the applicant may have been underpaying its employees or requiring its employees to reimburse some of their wages and allowances. The letter also advised that the Department had notified the Tribunal that a s.375A certificate applied to the information and that disclosure of which would be contrary to the public interest. The Tribunal provided a copy of the certificate and invited the applicant to provide comments on the validity of the certificate in writing or at the hearing on 25 July 2023, however, the applicant did neither.
79. The Tribunal is satisfied that the certificate provides a valid public interest reason for non-disclosure which are that the documents covered by the certificate would:
    • Disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
    • Disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those.
    • Where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant
80. The Tribunal also considers that the certificate is valid. The Tribunal notes that the information, in part, which was relevant to the issues in the review, was sufficiently disclosed to the applicant by the Department in NOITTAs and, in part, in the delegate’s decision record.

Conclusion

81. Despite the applicant not being accurate as to the outcome of the 2012 monitoring and that the employees’ contracts have not been updated to reflect the new payroll method and terms and conditions, the Tribunal notes that the breach was for a short period of time and was rectified in full, and for the other employees they were being paid in accordance with the Award. Having carefully considered all the circumstances as discussed above, the Tribunal considers that a sanction is not warranted in this case.
82. Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that none of the actions under s 140M should be taken. Accordingly, the Tribunal will set aside the decision under review

DECISION

83. The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Namoi Dougall
Member

ATTACHMENT – Extract from the Migration Regulations 1994

2.89 Failure to satisfy sponsorship obligation
...
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

(a) the past and present conduct of the person in relation to Immigration; and

(b) the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

(c) the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and

(d) the period of time over which the person has been an approved sponsor; and

(e) whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and

(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

(h) the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and

(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

(j) the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

(k) any other relevant factors.

...

(3) The person must ensure that:

(a) if:

(i) the person is mentioned in paragraph (1)(a); and

(ii) the nomination by the person of an occupation in which the primary sponsored person is identified was made before 18 March 2018;
the terms and conditions of employment provided to the primary sponsored person are:

(iii) no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) (as in force before 18 March 2018), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident; and

(iv) no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person's workplace at the same location; or

(b) if the person is mentioned in paragraph (1)(a) and the nomination by the person of an occupation in which the primary sponsored person is identified was made on or after 18 March 2018:

(i) the primary sponsored person's annual earnings in relation to the occupation are not less than the annual earnings the person indicated, at the time the nomination was approved, would be provided to the primary sponsored person for the occupation; and

(ii) the primary sponsored person's earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work in the same workplace at the same location; and

(iii) the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(e) if the person is mentioned in paragraph (1)(b), the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.