Fast Food and Sponsorship under the 457 visa Programme
Written By Dion Hawkins
Tue, Nov 17, 2015
Under the sub class 457 visa programme it is not possible to sponsor the following occupations in Fast Food or Takeaway Food Service:
• Café or Restaurant Manager
A fast food establishment is not defined under migration law. Immigration case officers rely on policy from the Procedure and Advice Manual (PAM3) to assess whether an establishment has the quality of ‘fast food’1:
Takeaway food service outlets mainly engage in providing food services ready to be taken away for immediate consumption. Customers order or select items and pay before eating. Items are usually provided in takeaway containers or packaging. Food is either consumed on the premises in limited seating facilities or taken away by the customer or delivered. The ABS also includes businesses mainly engaged in supplying food services in food halls and food courts within this category.
Fast food outlets have relatively low cost, fixed menus with an emphasis on speedy service. Table service is not provided and customers consume their meals directly from the disposable containers it was served in.
Fast casual dining outlets are similar to fast food outlets except the quality and prices of the menu and premises may be somewhat higher. Table service before and during consumption of the meal is not usually a feature, and customers typically place their food orders at a counter. For the purposes of the 457 program, fast casual dining outlets are considered to be fast food businesses.
It is important to be aware however, that Departmental policy is not law, and therefore should not lead a case officer to making a prescriptive decision based on policy alone.
Decisions appealed to the Migration Review Tribunal (MRT), now the Administrative Appeals Tribunal (AAT), have always carefully examined the nature of the business before deciding on whether it was predominantly providing a fast food service.
Gourmet Burgers and Restaurant Managers
One recent case on this issue involved well known gourmet burger franchise Grill’d2.
In that case, a 457 visa application had been made for a Café or Restaurant Manager within the business. The application was refused on the grounds that Grill’d was a fast food outlet and did not require a Café or Restaurant Manager.
The MRT overturned the decision of the Department on the basis that Grill’d was not a fast food outlet, and therefore not restricted from sponsoring a Café or Restaurant Manager.
In coming to its decision, many comparisons were made to McDonald’s as a clear example of a fast food outlet. In addition, the MRT looked at the following factors that Grill’d was not a fast food outlet:
• The venues are most owned by a company. Only 1/3 of business are franchises.
• The business uses high quality raw ingredients that require greater preparation for cooking.
• The business does not serve food in a packaged form.
• The business sells alcohol on premises, for which state licenses are required.
• Each particular venue has a distinctive design aesthetic based on the customer catchment of the area.
• 80% of food and drinks are consumed within venues and the business is introducing table service to many of its venues.
• The status of gourmet burgers has changed in recent times and may no longer be viewed merely as cheap takeaway food.
• The prices and preparation times for meals are not dissimilar to many typical restaurants.
• The number of items on a menu is not determinative as fast food outlets and upmarket restaurants can both have a selected or wide range of items for consumption.
The MRT also observed that there is a broad spectrum of food establishments, from fine dining to a fast food chain like McDonald’s. If considered that Grill’d sat somewhere in the middle, but leaned towards the restaurant side of that spectrum.
Key Points to Take Away
The specific factors that led the MRT to deciding Grill’d was not a fast food establishment will be of assistance to many food outlets that are uncertain as to whether they can sponsor a designated employee under the 457 visa programme.
The most important point to draw from this decision however, is that it is essential to closely examine the particular circumstances of the food establishment before drawing any conclusions about whether the business will be considered a fast food establishment.
If you would like to know if your business is eligible for sponsoring hospitality staff under the 457 visa programme, please call a TSS migration agent on 1300 877 466.
1 PAM3: Sch2Visa457 Temporary Work (Skilled) - Nominations and visa applications, at 17/10/2015
2 1408209  MRTA 790 (15 May 2015)
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