Understanding Caveats for the subclass 457 visa programme

We have been forwarded the information below from the DIBP 457 visa section to assist us in understanding the caveats which are going to apply to 59 occupations caveated under the 457 visa stream – I have not detailed all 59 occupations as many are not relevant to our client base, i.e rural/agricultural – I have only provided below the relevant caveats to the relevant occupations:

Please note this is only applicable to all applications not decided by 19^th April 2017 and to all applications moving forward lodged after 19^th April 2017. Those who already hold approved 457 visas are not affected by these caveats unless they wish to transfer their visa to a new employer.

Accountant (ANZSCO 221111)

A caveat is in place for this occupation, which excludes its use under the standard subclass 457 programme for any of the following:

clerical, book keeper and accounting clerk positions;
positions in businesses that have an annual turnover of less than $1M (AUD);
positions in businesses that have fewer than five employees.

This caveat is designed to ensure that in the context of this occupation, the subclass 457 programme continues to be used for skill level 1 accountants positions only – that is, positions where the nominee will be involved in planning and providing accounting systems and services relating to the financial dealings of organisations and individuals, and advising on associated record-keeping and compliance requirements.

Note: This does not mean that other tasks cannot be completed by visa applicant nominated as an Accountant. To meet programme requirements, it is expected that only very limited/ad hoc time would, however, be spent doing other tasks, not listed in ANZSCO, that could be performed by a non-skilled employee.

Conference and Event Organiser (ANZSCO 149311)

A caveat is in place for this occupation which excludes any of the following:

positions in businesses that have an annual turnover of less than $1M (AUD);
positions that have a nominated base salary of less than $65,000 (AUD).

Customer Service Managers (ANZSCO 149212)

A caveat is in place for this occupation which excludes its use for any of the following positions:

based in a front-line retail setting;
that predominately involve direct client transactional interaction on a regular basis;
with companies than have an annual turnover of less than $1M (AUD);
that have a nominated base salary of less than $65,000 (AUD).

Management Consultant (ANZSCO 224711)

A caveat is in place for this occupation which excludes its use where the position is:

in a business that has an annual turnover of less than $1M (AUD); or
in businesses that employs fewer than five full-time employees.

Marketing Specialist (ANZSCO 225113)

A caveat is in place for this occupation which excludes its use for any of the following positions:

based in a front-line retail setting;
that predominately involve direct client transactional interaction on a regular basis;
with companies than have an annual turnover of less than $1M (AUD);
that have a nominated base salary of less than $65,000 (AUD).

Recruitment Consultant (ANZSCO 223112)

A caveat is in place for this occupation which excludes any of the following positions:

in businesses that have an annual turnover of less than $1M (AUD);
in businesses that have fewer than five employees;
that have a nominated base salary of less than $65,000 (AUD).

Sales and Marketing Manager (ANZSCO 131112)

A caveat is in place for this occupation which excludes any of the following positions:

based in a front-line retail setting;
that predominately involve direct client transactional interaction on a regular basis;
with companies than have an annual turnover of less than $1M (AUD);
that have a nominated base salary of less than $65,000 (AUD).

Technical Sales Representatives NEC (note: includes education sales rep) (ANZSCO 225499)

A caveat is in place for this occupation which excludes any of the following positions that:

are based in a front-line retail setting;
are based in a call centre and do not require a significant technical knowledge of products;
predominantly involve selling educational courses to individual students;
have a nominated base salary of less than $65,000 (AUD).

Hospitality Occupations – Please also see the additional information at the end of the occupation list

Cafe and Restaurant Manager (ANZSCO 141111)

A caveat is in place for this occupation which excludes positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

fast food or takeaway food services;
fast casual restaurants;
drinking establishments that offer only a limited food service;
limited service cafes including, but not limited to, coffee shops or mall cafes;
limited service pizza restaurants.
drinking establishments that offer only a limited food service;
limited service cafes including, but not limited to, coffee shops or mall cafes;
limited service pizza restaurants.

Chefs (ANZSCO 351311)

A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

fast food or takeaway food services;
fast casual restaurants;
drinking establishments that offer only a limited food service;
limited service cafes including, but not limited to, coffee shops or mall cafes;
limited service pizza restaurants.

Note: A Chef will have completed a diploma or higher qualification and have spent a number of years working in the relevant industry to gain the necessary qualifications for this skill level. Apprentice Chefs are excluded from this unit group in ANZSCO and are included in the Cook unit group.

Cooks (ANZSCO 351411)

fast food or takeaway food services;
fast casual restaurants;
drinking establishments that offer only a limited food service;
limited service cafes;
limited service pizza restaurants.

Hotel or Motel Manager (ANZSCO 141311)

A caveat is in place for this occupation which excludes its use for positions which predominantly have responsibility for managing hotel or motel staff.

This occupation is not appropriate to fill where the duties more closely align with the tasks of a Hotel Services Manager (ANZSCO 431411) or a Hotel or Motel Receptionist (ANZSCO 542113).

Pastry Cook (ANZSCO 351112)

A caveat is in place for this occupation which excludes any of the following positions:

related to mass or standardised production, including positions based in a franchise or factory, as opposed to specialist production;
that involve full or partial production of food product for distribution to another location;
that predominantly involve the use of pre-prepared food product from another location.

Additional advice on hospitality positions

As noted above, there are caveats in place for the occupations of Café or Restaurant Manager, Cook and Chef, which exclude the occupation from the subclass 457 programme where the position is based in a limited service restaurant. A limited service restaurant, as outlined in the instrument, includes the following:

fast food or takeaway food services;
fast casual restaurants;
drinking establishments that offer only a limited food service;
limited service cafes including, but not limited to, coffee shops or mall cafes;
limited service pizza restaurants.

Cooks and Chef positions are also excluded from the subclass 457 programme where they are involved in mass production in a factory setting.

This section explains how the above terms are defined under policy for the purposes of these caveats.

Definitions

What is a fast food or takeaway service?

Under policy, fast food or take away food is defined as food that is quick to cook or is already cooked and as a result can be served as a quick meal or to be taken away – i.e. “a meal to go”.

Such food is to be distinguished from a restaurant or café where people sit and eat meals that are cooked and served on the premises, pay on completion of the meal and with the service provided being an important factor, as well as the food.

Examples of eating establishments considered under policy to provide fast food or takeaway services may include, but are not limited to, fast food chains, fish and chips shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle take away shops and fried chicken shops.

What is a fast casual restaurant?

Fast casual restaurants, sometimes also referred to as fast casual dining outlets, are similar to fast food outlets except the quality of the food and prices of the menu are somewhat higher and they may have a liquor licence.

These restaurants are designed to offer the quality of established restaurants with the informality of fast food stores and speedier service than a full service restaurant. Typically, these outlets:

do not provide full table service, with customers ordering their food at a counter even if it is delivered to the table;
operate in chains or as franchises and are heavily advertised;
offer streamlined menus similar to fast food establishments;

offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food home;

do not generally employ chefs – with some menu items still mass-produced, even if they are made from better quality and fresh ingredients,
cater for special dietary needs unlike fast food establishments; and
do not have a drive through facility.

Examples of eating establishments that are considered to be fast casual restaurants may include, but are not limited to fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food (e.g. burgers, fried chicken, fish and chips, sandwiches) or food from a particular country (e.g. Mexican, Greek, Italian or Japanese).

Drinking establishments that offer only a limited food service

Subclass 457 nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a drinking establishment, such as a pub, a bar, a beer hall or an izakaya. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve. In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant – with some pubs even marketing themselves as ‘gastropubs’.

The subclass 457 programme is not considered appropriate to fill positions in bars/pubs where only a limited food service is provided – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

Under policy, a drinking establishment is considered to have a limited food service menu where it only provides snacks (e.g. olives, dips, chips, pickles), or a very limited range of food that involves limited

Limited service cafes including

Subclass 457 nominations can be received for the occupations of cooks, chefs and café or restaurant manager where the location is a café. In some cases, these establishments only offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks). In other circumstances, the menu available can be comprehensive and equivalent to that of a restaurant.

The subclass 457 programme is not considered appropriate to fill positions in cafes where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

Under policy, factors adding weight to a finding that an eating establishment is a limited service café include that the café:

is located in a mall;
is primarily a coffee shop (that is, an establishment that focuses on serving hot beverages such as tea or coffee);

have a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips).

By contrast, full service cafes are likely to have a comprehensive food menu and develop most dishes from scratch in a full commercial kitchen.

What is mass production in a factory setting

An additional caveat applies to the occupations of cook and chef which excludes positions from use under the subclass 457 programme where they involve mass production in a factory setting – with such positions generally lesser skilled and considered able to be sourced from the local labour market.

Cooks employed under the subclass 457 programme are expected to be involved in preparing and cooking food from scratch rather than, for example, just heating pre-prepared meals, or making basic food stuffs in a factory setting.

Under policy, mass production refers to the making of products using assembly line techniques, with workers working on an individual step of the production process. Such production techniques usually also involve the use of tools, machinery and other equipment, usually automated.

If a nominated position for a Cook or a Chef is based in a factory setting, officers thus need to check whether or not this additional caveat applies.

Distinguishing between full service and limited service cafés/restaurants

Factors supporting classification as a restaurant or café

Under policy, factors that may be relevant to an assessment that the position is based in a café or restaurant include:

how the business is marketed to the public
the business is mainly engaged in providing food and beverage serving services for consumption on the premises, even if take away services are available
meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking – using a range of equipment and techniques depending on the nature and size of the produce that is being prepared
a comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises
table service is provided by a waiter/waitress – that is customers are seated at restaurant/café tables and provided with assistance while seated as required (i.e. provided with menus, asked for order, provided with additional items/assistance where required and provided with bill)
customers pay after eating
the business holds a liquor licence and has a comprehensive selection of alcoholic beverages available via table service
the menu caters for special dietary requirements and varies from time to time depending on availability of produce, and seasoning
if the menu is limited, there is a focus on organic or speciality ingredients that are prepared onsite or ‘gourmet products’, and/or prices are higher than would be expected at a takeaway establishment
the size of portions may also vary from time to time given the human element involved in the preparation and cooking of the items
the business has a full commercial kitchen and significant food storage facilities for fresh ingredients
the business has had their performance recognised via restaurant industry awards
employment at the business has been accepted by TRA as skilled work experience, or by a recognised training institution as sufficient to support study in a Certificate III in Commercial Cookery
where a chain, different outlets are designed differently to reflect the local customer base and outlets are largely owned by the company rather than franchisees.

Factors supporting classification not as a restaurant or café

Under policy, factors that may be relevant to an assessment that the position is not a restaurant or café (i.e. that it is based in a fast food or take away service, or a fast casual restaurant) include that:

the business does not offer full table service
the business is a well-known fast food or fast causal restaurant chain
the business markets itself as a fast food restaurant or a fast causal restaurant, within significant levels of advertising
the business is primarily a coffee shop
operate a franchise or restaurant chain, with different outlets are largely identical in design

the business offers speed, convenience, and familiarity to diners who may eat in the outlet or take their food home

the business mainly engages in providing food services ready to be taken away for immediate consumption with only limited onsite seating provided (if any)
the business offers streamlined or limited menus, with food prepared according to a standardised format or that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips)
the business does not generally employ chefs – with food still mass-produced even if better quality and fresh ingredients are used than is typical in a fast food context , with special dietary needs often catered for
the business does not have a full commercial kitchen – and only has equipment for heating/final preparation of food
the business is located in a food hall and food courts that consists of fast food and take away services, as opposed to award winning/high profile restaurants that can now be co-located in some shopping malls
customers are required to order at a counter and pay before eating
limited seating and/or only communal tables shared with other business is provided
meals are served in packaged form and/or there is a focus on ‘street food’ (i.e. handheld foods)
meals are served in disposable containers (although some outlets may provide cutlery and crockery for customers dining in the establishment)
reservations are not required or provided for
food is distributed from a central location
food is apportioned into predetermined quantities and sizes, seasoned to a fixed standard and delivered, pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking (e.g. frying or grilling)
if heating or cooking is required, cooking times for the items are usually pre-arranged for a set duration, as the time it takes to cook through can be predetermined given the control over portion size that is packaged prior to delivery to each venue
employees of the business are covered by the Fast Food Industry Award
the business has had their performance recognised via fast food industry awards.

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