Two café and restaurant managers in one establishment

By Lorenzo Boccabella, Barrister-at-law, specialist in migration law (8 Dec 2023)

 

By Lorenzo Boccabella, Barrister-at-law Specialist in migration law

Some Immigration delegates seem to take the view that an establishment cannot have two café restaurant managers even though it might be 7 days a week operation serving lunch and dinner.

In one case I was involved in, the restaurant was open for 76 hours per week, excluding of course setup and close down time. The delegate was concerned that there was an overlap of the hours worked by the two managers.

This case about a subclass 187 RSMS visa and the relevant test was set out in Reg 5.19(4)(h)(ii)(B) which reads:

(B) there is a genuine need for the nominator to employ the person [nominated]…. as a paid employee, to work in the position under the nominator’s direct control;  

Of course, it has to be recognised that in the scheme of things, the position of Cafe or Restaurant Manager is at the lower scale of management, they are operational managers.  Here is how the ANZSCO describes as the tasks:

CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants, and related establishments to provide dining and catering services.

Tasks Include:

  • planning menus in consultation with Chefs

  • planning and organising special functions

  • arranging the purchasing and pricing of goods according to budget

  • maintaining records of stock levels and financial transactions

  • ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

  • conferring with customers to assess their satisfaction with meals and service

  • selecting, training and supervising waiting and kitchen staff

  • may take reservations, greet guests, and assist in taking orders

If it is 7 days a week operation involving both lunch and dinner, one can easily see that two people could do all of the tasks set out above.

Obviously a 7 days a week operation is likely to have 2 chefs hence a meeting to plan “menus in consultation with Chefs” could be genuinely attended by two café restaurant managers.

One could also see that 2 managers could together engage in planning and organising special functions, one could do some special functions, another could other functions. 

The same exercise could be done for all the above tasks.

Even the word control is not restrictive, the Macquarie Dictionary definition includes the following:

 

“1.  to exercise restraint or direction over; dominate; command.”

There is certainly no statutory prohibition on a restaurant having two restaurant managers. Two restaurant managers can exercise direction.

Two restaurant managers can co-command a restaurant.

Currently I have a case before the Federal Circuit and Family Court testing an AAT decision affirming a delegate’s decision to say there cannot be two restaurant managers in a busy, 7 day a week operation.

Our submission was that the tribunal’s reasoning was illogical. The AAT is not a specialist tribunal and has no special expertise in managing restaurants.

Even though as a barrister I enjoy the fight in Court, in practice, one should always avoid litigation if possible. One way could be to describe the job title in accordance with the ‘Alternative Titles’ identified in the ANZSCO which are:

1.    Food and Beverage Manager

2.    Restaurateur

So, one of the restaurant managers could be titled ‘Food and Beverage Manager’ and the other a ‘Restaurateur’, the tasks assigned to each position could be tweaked to reflect those different positions.

 

The ANZSCO itself states under the heading, ‘INTERPRETING ANZSCO OCCUPATION DEFINITIONS’:

“The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an 'occupation' is a set of jobs whose main tasks are characterised by a high degree of similarity.”

If the other restaurant manager is a permanent resident or Australian or NZ citizen then there is no need to stick with the ANZSCO occupational titles, the other manager could simply be called something like, ‘Directors’ Representative’ or ‘Directors’ Delegate’, then there be only one ‘restaurant manager.

We can all draw solace from what Humpty Dumpty said in Lewis Carroll’s Alice in Wonderland

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less. ' 'The question is,' said Alice, 'whether you can make words mean so many different things.

Allegra Boccabella