Chefs and Cooks: What you and your employer need to know if you are applying for a Subclass 482 Visa or a Subclass 186 Visa
Are you working as a Chef or Cook in Australia?
Is your employer sponsoring you for a Temporary Skill Shortage (Subclass 482) Visa, a Skills in Demand (Subclass 482) visa or an Employer Nomination Scheme (Subclass 186) Visa to work as a Chef or Cook?
If so, here are two (2) very important caveats you and your sponsoring employer need to know about as they may prevent your employer’s nomination application from being approved.
Disclaimer: The information provided on our website or on any of our social media platforms is published for general informational purposes only and does not constitute legal advice. The information provided on our website or on any of our social media platforms about the migration regulations, policies and legislation is current as of the time it is published, and may be subject to change. Your use of the general information published on our website or our social media posts does not create a solicitor-client relationship between you and Inclusive Migration, and you should seek legal advice about your options from a legal practitioner or migration advice from a migration agent registered with the Office of the Migration Agents Registration Authority before proceeding with any application.
3-step Process to being sponsored for a Subclass 482 Visa
By way of background, the Subclass 482 Visa application is a 3-step process, whereby:
The employer lodges an application to be approved as a standard business sponsor or accredited sponsor;
The employer lodges an application for approval of a nominated position; and
The employee lodges an application for a Subclass 482 Visa to work for the sponsoring employer in the nominated position.
All three (3) Subclass 482 sponsorship, nomination and visa applications can be lodged together, as long as they lodged in the above consecutive order. They will also be processed in this order, such that the sponsorship application must be approved before the nomination application can be approved, and that the sponsorship and nomination applications must be approved before the sponsored employee can be granted a Subclass 482 Visa.
For the purposes of this free visa guide, we will be focusing on step 2, which is the sponsoring employer’s nomination application, and the caveats which may prevent a sponsoring employer from nominating someone to work in their business as a Chef or Cook.
2-step Process to being nominated for a Subclass 186 Visa
The Subclass 186 Visa application is a 2-step process, whereby:
The employer lodges an application for approval of a nominated position; and
The employee lodges an application for a Subclass 186 Visa to work for the employer in the nominated position.
Both Subclass 186 nomination and visa applications can be lodged lodged together, as long as they are lodged in the above consecutive order. They will also be processed in this order, such that the nomination application must be approved before the employee can be granted a Subclass 186 Visa.
For the purposes of this free visa guide, we will be focusing on step 1, which is the employer’s nomination application, and the caveats which may prevent an employer from nominating someone to work in their business as a Chef or Cook.
What is a caveat and how does this work in the Migration Regulations?
To be sponsored for a Subclass 482 Visa or nominated for a Subclass 186 Visa, a sponsoring employer and an overseas worker must nominate an occupation which is available for the Subclass 482 Visa Program or the Subclass 186 Visa Program in the relevant legislative instruments.
For the Temporary Skill Shortage (Subclass 482) Visa Program, certain occupations may be impacted by caveat(s) (also referred to as inapplicability provisions) due to the operation of Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019 (“LIN 19/048”), which was the legislative instrument that specifies the occupations available for the Temporary Skill Shortage (Subclass 482) Visa Program. The Temporary Skill Shortage (Subclass 482) Visa Program has since been replaced by the Skills in Demand (Subclass 482) visa, but applications for merits and judicial review (i.e. presently before the Administrative Review Tribunal, Federal Circuit and Family Court of Australia and Federal Court of Australia) continue to be subject to the legislative instrument that applied at the time the visa application was lodged.
For the Skills in Demand (Subclass 482) Visa Program, certain occupations may be impacted by caveat(s) (also referred to as inapplicability provisions) due to the operation of Migration (Specification of Occupations—Subclass 482 Visa) Instrument 2024 (“LIN 24/089), which is the legislative instrument that specifies the occupations available for the Core Skills stream of Skills in Demand (Subclass 482) Visa Program.
For the Subclass 186 Visa Program, certain occupations may be impacted by caveat(s) (also referred to as inapplicability provisions) due to the operation of Migration (LIN 19/049: Specification of Occupations and Assessing Authorities – Subclass 186 Visa) Instrument 2019 (“LIN 19/049), which is the legislative instrument that specifies the occupations available for the Subclass 186 Visa Program.
In particular, LIN 19/048, 24/089 and LIN 19/049 set out the conditions in which the Chef or Cook occupation may be available for the Subclass 482 Visa, and actually excludes positions involved in mass production in a factory setting and positions in a limited service restaurant by imposing them as caveats. This means that if a nominated Chef or Cook position exists within a limited service restaurant or a mass production setting, the nomination application will not be successful, and the sponsoring employer will not be able to sponsor a Chef or Cook for a Subclass 482 Visa or a Subclass 186 Visa.
Why do these caveats apply?
Caveats or inapplicability provisions apply to an extensive list of occupations which are available for the Subclass 482 Visa and Subclass 186 Visa Programs, which means that apart from the Chef and Cook occupations, there are many other occupations which are only available for the Subclass 482 Visa and the Subclass 186 Visa in certain conditions.
For the Chef and Cook occupations, these caveats were actually designed to ensure that a business can only sponsor overseas workers for:
Skill Level 2 Chef positions only, that is, leadership positions in a dining establishment that involve managerial tasks such as planning menus, monitoring the quality of dishes, preparing and cooking food and advising on cooking procedures; and
Skill Level 3 Cook positions only, that is, positions in a dining establishment that involve preparing, seasoning and cooking food, instead of individuals who will actually be undertaking the role of a Fast Food Cook, Food Trade Assistant or Kitchenhand.
In this regard, the Department’s position is that employer-sponsored skilled visa programs are not considered appropriate to fill positions in restaurants where only a limited food service is provided, or positions involved in mass production in a factory setting, since such positions are generally lesser skilled and should be able to be sourced from the local labour market.
When would a business be considered a limited service restaurant?
A limited service restaurant includes:
a fast food or takeaway food service (e.g. fast food chains, fish and chip shops, hamburger shops, kebab shops, takeaway sushi shops, Asian noodle takeaway shops and fried chicken shops);
a fast casual restaurant (e.g. fast casual dining franchises which focus on serving a ‘gourmet’ or ‘organic’ version of fast food such as burgers, fried chicken, fish and chips and sandwiches);
a drinking establishment that offers only a limited food service including where it only provides snacks (e.g. olives, dips, chips, pickles) or a very limited range of food that involves limited preparation (e.g. toasties, tacos, simple pizza or standard hamburgers);
a limited service café, including a coffee shop or a mall café including where they offer a very limited food service to accompany the drinks that they serve (e.g. coffee, tea, non-alcoholic drinks), is located in a mall or shopping centre food court, is primarily a coffee shop that focuses on serving tea or coffee and/or has a limited food menu that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, standard hamburgers, fish and chips); and/or
a limited service pizza restaurant such as where a location is a pizza restaurant and mainly provides a takeaway pizza service with limited other menu items and/or limited table service (e.g. does not serve non-pizza related items, has minimal onsite seating with takeaway the main focus of the business, customers pay at the counter and/or customers eat pizza from pizza boxes even if on the premises).
Additionally, the Department may find that a business is not a full service restaurant or café where:
the business does not offer full table service;
the business is a well-known fast food or fast casual restaurant chain;
the business markets itself as a fast food restaurant or a fast casual restaurant, within significant levels of advertising;
the business is primarily a coffee shop;
the operation is a franchise or restaurant chain, where 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 formator that involves limited preparation (e.g. toasties, sandwiches, cakes, pastries, hamburgers, fish and chips);
the business does not generally employ chefs – with food 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/centres;
customers are required to order at a counter and pay before eating;
limited seating and/or only communal tables shared with other businesses 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 forcustomers 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.
When would a position be considered to be involved in mass production in a factory setting?
Chefs and Cooks are expected to be involved in preparing and cooking food from scratch rather than simply 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).
What do the caveats mean for restaurants or cafes who may have some features which the Department regards as being “limited service” or “mass production”?
It is important to note that Departmental policy in relation to the interpretation of these caveats or inapplicability provisions are for guidance only, and each case will be considered on a case-by-case basis. This means that having some features of a limited service restaurant or mass production in a factory setting does not necessarily mean that the nomination application will be refused, and the decision maker is obliged to consider the full circumstances when assessing the nature of the business in which the nominated position is located. For instance, with the rise of food ordering apps such as UberEats and other food delivery services like Doordash, EASI and Menulog, the Department acknowledges that more full service restaurants are providing “takeaway” meals that are nonetheless available for dine-in service, and providing a takeaway service does not necessarily mean that they are a fast food or takeaway establishment.
Nonetheless, if a sponsoring employer’s business has some of the above features, it is likely that the nomination application will be scrutinised by the Department for further assessment as to whether the caveats or inapplicability provisions operate to prevent the the sponsorship of an overseas worker for a Subclass 482 Visa or a nomination of an overseas worker for a Subclass 186 Visa.
In such cases, it is important that proper submissions and documentary evidence distinguishing the business from a limited service restaurant or mass production food factory are provided to the Department at lodgement, especially since the Department is not obliged to provide the sponsor with an opportunity to clarify its business operations before the finalisation of a nomination application. This means that if the Department is of the view that the nominated position actually exists within a limited service restaurant or is involved in mass production in a factory setting, they may refuse the nomination application without inviting the sponsor to comment on this, and they can proceed to refuse the nomination application without requesting any further information to consider this further. Without an approved nomination, the sponsored employee’s associated Subclass 482 Visa application or Subclass 186 Visa application cannot be granted, and will likewise be refused in due course.
How do you distinguish a full service restaurant from a limited service restaurant or mass production factory setting?
There are a variety of ways in which a sponsoring employer can demonstrate to the Department that their restaurant or café is in fact a full service restaurant, such as through the way the business is marketed to the public, how its meals are prepared and the service which is provided to customers who dine in.
Our experienced immigration lawyers at Inclusive Migration have extensive experience in advising restaurants and cafes about this and can assist with preparing detailed legal submissions in support of each nomination application, to demonstrate that the business should be characterised as a full service restaurant or café.
Whether you are seeking legal representation, assistance or ad-hoc advice about your immigration matters, we are here to support you. Should you wish to discuss your eligibility to be sponsored as a Chef or Cook for a Subclass 482 Visa or a Subclass 186 Visa, please email info@inclusivemigration.com.au or submit an enquiry using the contact form on our website.
