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Sponsorship in Fast Food Possible under RSMS


Written By Dion Hawkins
Thu, Sep 29, 2016
Dion Hawkins

In a decision earlier this year, the Administrative Appeals Tribunal (AAT) confirmed employment in fast food does not prevent sponsorship of persons for permanent residency under the Regional Sponsored Migration Scheme (RSMS).

The decision concerned sponsorship of a Retail Manager in a Subway Franchise in Perth. The visa applicant held a Certificate IV in Business, Diploma in Business, Diploma of Marketing and Advanced Diploma of Hospitality Management. She was initially engaged as a sandwich artist by a Subway Franchise in Victoria in September 2013. In November 2014 she re- located to the Subway Franchise owned by the sponsoring business located in Perth. Identifying her management skills and qualifications, she was quickly promoted to Store Manager in January 2015. Acknowledging that they did not want to lose this valuable employee, the business elected to sponsor her for a subclass 187 visa under the direct entry stream as a Retail Manager.

The application was initially refused by the Department of Immigration and Border Protection (DIBP) on the grounds that the position was that of a Retail Supervisor not a Retail Manager. The important difference here is that a Retail Supervisor is not a position under which it is possible to sponsor under the RSMS stream under the current approved occupational list for this pathway (The occupation of Retail Manager has a higher skills threshold than that for a Retail Supervisor).

The DIBP came to the conclusion that a fast food franchise, such as Subway, could never require a position with the higher skill level of a Retail Manager as typically the duties associated with that position, such as advertising, training and controlling operations would be handled by the Franchisor.

The sponsoring business chose to take the matter further and appealed to the AAT to have the DIBP’s original decision overturned.

The AAT examined the criteria for approval of a nomination under the RSMS stream and how her duties aligned with those of what a Retail Manager might be expected to do in accordance with the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

In its decision the AAT held that her wide range of duties, including hiring and training all staff, addressing issues in relation to Occupational Health and Safety, budgeting, monitoring sales, inventory and advertising, were sufficiently related to the ANZSCO occupational of Retail Manager to allow the application to be successful.

The member also noted that the position of Retail Manager contemplates the specialisation of ‘fast food manager’ and that the key question in distinguishing between whether the position is that of a Retail Supervisor or Retail Manager was:


“whether the position can be said to organise and control the operations of the business or whether the position simply supervises and coordinates the activities of the retail sales workers within the business.”

Taking into account all the evidence, the member concluded that she was responsible for organising and controlling the operations of the Subway Franchise in Perth and that the work she was performing was sufficiently higher to what might be done by a Retail Supervisor.

Key Messages from this Case
While this decision is not binding on the DIBP in terms of future applications, it nonetheless is significant in challenging what is often perceived as the department’s restrictive policy approach. In this regard, there are 3 key messages to take away from this case for businesses looking to sponsor international staff in the hospitality industry:

1. RSMS is a valuable pathway for sponsorship of skilled international workers;
2. Fast food establishments may sponsor candidates under RSMS in accordance with the occupational list which includes Cooks, Chefs, Restaurant Managers and Retail
Managers;
3. It is not necessary for the duties of the visa applicant to exactly match the tasks
listed under the ANZSCO occupational definition, providing a sufficient proportion of duties correspond to that definition.

Businesses that would like to sponsor international workers in the fast food industry may also be able to access the DIBP’s Fast Food Industry Labour Agreement (FFLA) as an alternative solution. Businesses that have an approved labour agreement are able to sponsor both Retail Managers and Retail Supervisors.

If you are a business owner or visa candidate in regional Australia and would like to explore options for sponsorship under the RSMS pathway or a labour agreement, please feel free to contact a TSS Registered Migration Agent on (03) 9421 1020.

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