Following recent changes to Australian migration law, it is now necessary for employers to meet specific caveats in order to employ new visa holders under the 457 and 186 visa streams.

A list of occupations relevant to the hospitality industry which are affected by these caveats is set out below:

Hospitality occupations affected by caveats: (IMMI 17/060: Specification of Occupations—Subclass 457 Visa)

Chef (ANZSCO 351311)

• Excludes positions in mass production in a factory setting
• Excludes positions in a limited service restaurant

Cook (ANZSCO 351411)

• Excludes positions in mass production in a factory setting
• Excludes positions in a limited service restaurant

Cafe or Restaurant Manager (ANZSCO 141111)

• Excludes positions in a limited service restaurant

Pastry Cook (ANZSCO 351112)

• Excludes positions that relate to mass or standardised production (as opposed to specialist production)

Baker (ANZSCO 351111)

• Excludes positions that relate to mass or standardised production (as opposed to specialist production)

Mass Production vs Specialist Production

What constitutes Mass Production in the view of the Department of Immigration? The instrument that governs this caveat indicates that the following positions are exclude:

• a position based in a franchise or factory;
• a position that:
• o involves full or partial production of food product for distribution to another location; or
• o predominantly involves the use of pre‑prepared food product from another location.

Examples of Mass Production Facilities

These factors may appear quite restrictive, particularly to employers that operate in a franchise structure or that provide catering services, where food is distributed for consumption at an off-site location. However, it is still unclear how the Department of Immigration are applying the new changes. Their current policy does not appear to explicitly exclude positions under these arrangements, providing that the food products are prepared from ‘scratch’ i.e. not using pre-mixed and pre-cooked ingredients, and can only be performed by highly skilled hospitality professionals.

Limited Service Restaurants

For the positions of Chef, Cook and Café or Restaurant Manager, a caveat applies to venues deemed to be operating as limited service restaurants. The following guidance is provided on what the term limited service restaurant means:

• a fast food or takeaway food service;
• a fast casual restaurant;
• a drinking establishment that offers only a limited food service;
• a limited service cafe, including a coffee shop or mall cafe;
• a limited service pizza restaurant.

Examples of Limited Service Restaurants

The Department of Immigration provides the following additional policy concerning what it views as a limited services restaurant. (PAM3 - MIGRATION REGULATIONS - SCHEDULES Temporary Work (Skilled) visa (subclass 457) – nominations 01/07/2017)

Fast Food or Take Away Food

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.

Fast Casual Restaurants

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.

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 Establishment with Limited Food Service

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.

In some cases, drinking 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’.

Limited Service Café

The subclass 457 programme is not considered appropriate to fill positions in cafes and restaurants where only a limited food service is provided, such as coffee shops, limited pizza restaurants 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.

Limited Service Pizza Restaurant

Unfortunately at this point in time no guidance has been provided on what constitutes a limited service pizza restaurant.

Summary

For a comprehensive list of factors that support or oppose the definition of a venue as a full-service restaurant or café, please refer to the interim guidelines on caveats for the subclass 457 programme.

Given the recent comprehensive changes to Australian employer sponsored migration, it is highly recommended that employers seek further advice before proceeding with sponsorship in these occupations.

For further information and to speak with a TSS registered migration agents, please contact us on 03 9421 1020.