The applicant stated that in addition to the above 6 staff members, the business engaged 7 casual staff, making a total of 13 personnel in the business. The applicant's oral evidence is that the 7 casuals comprise of 3 waiting staff plus 4 kitchen hands to assist the chefs / cooks. When asked about the hours worked by these casual staff, the applicant told the Tribunal that the casuals work on average, between 20 and 25 hours per week, but that the minimum hours worked by any casual staff member would be at least 30 hours in any month. The applicant stated, when asked, that he pays the casuals $26 per hour plus a 25% casual loading [equating to $32.50 per hour].
The Tribunal notes the business trades 7 days a week and provides breakfast, lunch and dinner service. The Tribunal accepts the applicant's oral evidence discussed above relating to wages paid as this is broadly consistent with the size and 7 day nature of the business described and also the organisational chart provided regarding personnel engaged in the business, together with the available financial records of wages and salaries paid. The applicant told the Tribunal, when asked about any pay increases, that there had not been any increase in wages paid over the last 5 years. The Tribunal accepts the applicant's oral evidence that no casual employee was engaged for less than 30 hours in any month at $26 per hour plus casual loading of 25%. At a minimum of 30 hours in any month, this equates to $975 for a month's work [$32.50 per hour x 30 hours]. The oral evidence is that very occasionally a casual may be required to work 8 or more hours in a day. This monthly pay rate is greater than the minimum threshold of $450 per month above which superannuation becomes payable to the employees.
At the hearing, the applicant confirmed, when asked, that the Profit and Loss (P&L) statements for the years ended 30 June 2017 and 2018 were complete and correct as these had been prepared by the business' accountant for tax and compliance purposes. The applicant also confirmed, when asked, that there were no changes or amendments made and that the financial statements / returns had been lodged with the Australian Taxation Office (ATO). For this reason, the Tribunal places weight on the financial statements and in particular, the P&L statements for the years ended 30 June 2017 and 2018 and accepts these as complete and accurate.
The Tribunal has had regard to the Regional Certifying Body (RCB) Certificate dated 21 July 2016 , noting the Department of State Development SA is 'satisfied' with those matters certified on the RCB Certificate. The Tribunal has also had regard to the aforementioned P&L financial statements provided to the Tribunal. For the 2017 financial year the P&L statement shows total wages and salaries paid of $324,410, and $434,390 paid for the 2018 financial year. The P&L statement for 2017 records $24,504 superannuation contributions for that financial year against wages and salaries paid of $324,410 which is less than the federal legislation (Super Guarantee) requirement of 9.5% or $30,818. For the following year 2018, the wages and salaries paid were $434,390 and superannuation contributions of $27,814 are recorded which again, falls short of the 9.5% threshold of $41,267. For the most recent completed financial year 2019, the P&L statement records $35,548 in superannuation contributions made against total wages recorded of $394,007. Although the superannuation appears slightly short paid, the Tribunal considers this may substantially comply with the Superannuation Guarantee 9.5% requirement of $33,490 for that year and accordingly, the Tribunal draws no adverse finding for this issue relating to the 2019 financial year.
At the hearing, the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that the required Superannuation Guarantee minimum of 9.5% on wages and salaries payroll for the 2017 year of $324,410 equates to $30,818, and that the $24,504 superannuation recorded falls short of the legislated Superannuation Guarantee amount due. The Tribunal also put to the applicant that for the 2018 financial year, the required Superannuation Guarantee minimum of 9.5% on wages and salaries of $434,390 equates to $41,267 and that the $27,814 superannuation paid falls well short of the legislated Superannuation Guarantee requirement of 9.5% of applicable wages and salaries.
The Tribunal invited the applicant, in accordance with s.359AA, to comment or respond to the above adverse information that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that this was regarding this issue of the non- compliance with the Superannuation Guarantee requirement, in breach of industrial laws of the Commonwealth, and the State of South Australia, in which the applicant operates a business and employs employees in the business, relating to workplace relations. The applicant was also advised that the Tribunal would consider any request for additional time to comment or respond, if so requested.
The applicant responded forthwith to the above and explained that he relies on his accountant and a book-keeper to administer financial matters including processing of wages/salaries and superannuation payments. The applicant reiterated 'we process our wages through MYOB software and relevant super has been made according to that software'. The applicant responded, when asked, that he was aware that superannuation is not payable on overtime or casuals earning less than $450 per month. The Tribunal places weight on, and accepts the applicant's aforementioned oral evidence, that there has been no casual employee engaged in the business being paid less than 30 hours per month. In this regard the Tribunal accepts that, at $26 per hour plus casual loading of 25%, a minimum of 30 hours in any month equates to $975 [$32.50 per hour x 30 hours]. This results in more than $450 per month which is the threshold minimum level remuneration above which Superannuation Guarantee contributions become payable for those employees.
The Tribunal has had regard to the evidence and submission that the company uses MYOB software and engages the services of a bookkeeper in conjunction with the applicant's accountant, Van Hoc & Associates, to 'ensure payroll is processed in an accurate and timely manner. Mr Nguyen submitted that Superannuation Guarantee contributions for employees (whether full-time, part-time or casual) are automatically populated when their wages are entered in the system. However, this is not borne out by the applicant's own oral evidence provided to the Tribunal in respect of the issue of superannuation (under) paid for wages in financial years 2017 and 2018. In this regard, the Tribunal put to the applicant that the superannuation payable on just the 5 salaried full time employees (together with the applicant as part time owner / Director) applies to annual wages and salaries of $279,400 for those 6 persons. The superannuation payable on these wages and salaries alone, at 9.5% is $26,543, and that figure is before any superannuation is applied for the 7 casual staff in the business (which at $975 per month minimum earnings for each casual member would equate to several thousand more due as superannuation). This is to be contrasted with the superannuation paid of $24,504 in 2017 and $27,814 in 2018.
The Tribunal accepts the submission that there have not been investigations or findings made by the Australian Taxation Office or Fair Work Commission / Ombudsman in relation to compliance by the applicant with workplace relations laws regarding its employees, but this alone is not dispositive of the issue of compliance with such laws. At the hearing the applicant confirmed in his oral evidence that from July 2017, investigations had been conducted regarding monitoring of the applicant's sponsorship obligations. The applicant told the Tribunal that the monitoring activity resulted in a warning issued by the Department to the applicant on 6 February 2018 about inadequate record keeping practices including those relating to records for payment of wages to employees by cash. The applicant said that this practice had changed to payment of wages by bank transfers, which according to the applicant's written submissions of 13 February 2020, was adopted from 14 August 2017. The Tribunal accepts the applicant's oral evidence in respect of the warning issued by the Department as it is consistent with the Department's reported finding of non-compliance with Reg 2.82 (regarding failure to keep proper records). This is in contrast to the applicant's written submissions and evidence that the Department 'came back and said it was all okay' although, the Tribunal acknowledges from the written submissions of 13 February 2020 that based on further monitoring by Australian Border Force, the Department's Sponsor Monitoring Unit acknowledged ' ...we are satisfied that you complied with the program requirements and no further action is required.' This subsequent compliance with the Department's program requirements weights somewhat in favour of the applicant.
The Tribunal has considered the issue of underpaid superannuation against the background of the prior monitoring by the Department and the adverse finding of non-compliance with Regulation 2.82 relating to record keeping practices and payment of wages that resulted in the issued warning discussed above. The Tribunal has also considered the submission that this has now been remedied by payment of wages by bank transfer and also that no sponsorship bar was applied. This also weighs in the applicant's favour. However, the Tribunal considers the degree and extent of the underpayment of superannuation that extended for a period of two consecutive years in 2017 and 2018 is serious, not minor and demonstrates recurrent non-compliance with Commonwealth law concerning workplace relations (Superannuation Guarantee) affecting employees of the business. The Tribunal considers that such underpayments would be likely to exploit the nominee (and other workers).
Having considered the available evidence before it discussed, the Tribunal concludes that superannuation contributions of 9.5% of the applicant's wages and salaries payroll were short paid. As aforementioned, the Tribunal places weight on the finalised financial statements and returns for 2017 and 2018 discussed for the business prepared by its accountant. The Tribunal is not compelled of any reason why the Tribunal should not accept the accountant's financial reports as complete and accurate. The Tribunal finds that the applicant has underpaid superannuation employment entitlements of its employees in the 2017 and 2018 financial years. There is no evidence that the underpayment has been promptly remedied.
The Tribunal has also had regard to the PAM guidelines discussed in the applicant's further written submission above and has taken care not to elevate the guidelines to that of a legislative instrument. The Tribunal agrees that a satisfactory record of compliance does not necessarily require an unblemished record. However, having regard to the pertinent facts of this case discussed, the Tribunal does not consider this is a singular or minor breach. The Tribunal regards the applicant's conduct overall in respect of underpayment of superannuation does not, on balance, amount to an acceptable or sufficient record of compliance with Commonwealth (Superannuation Guarantee) laws or State laws pertaining to workplace relations sufficient to fulfil its workplace obligations to the nominee. The Tribunal is not able 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 in South Australia.
Accordingly, the requirements of r.5.19(4)(g) are not met.
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.
[2]
The Tribunal affirms the decision under review to refuse the nomination.
5.19 Approval of nominated positions (employer nomination)
[5]
(a) be made in accordance with approved form 1395...; and
[6]
(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
(4) The Minister must, in writing, approve a nomination if:
[9]
(i) is made in accordance with subregulation (2); and
[10]
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
[11]
(i) is actively and lawfully operating a business in Australia; and
[12]
(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
[13]
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
[14]
(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
[15]
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
[16]
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
[17]
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
[18]
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
[19]
(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
[20]
(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;
[21]
(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
[22]
(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
[23]
(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
[24]
(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;
[25]
(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;
[26]
(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;
[27]
(DA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
[28]
(E) the business operated by the nominator is located at that place;
[29]
(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and
[30]
(II) located in the same State or Territory as the location of the position;
[31]
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).