Appeal Decision on Retail Manager Positions

1 July 2020

The Immigration and Protection Tribunal (IPT) has recently found that a franchise agreement does not prevent a Retail Store Manager’s role from being assessed as skilled, leaving open the possibility of making a successful application under the Skilled Migrant Category (SMC). This also enables the possibility of the Franchisee’s Store Managers being able to secure three-year work visas more readily.

“Good news for Retail Managers employed by a Franchisor franchises.”

Lane Neave recently assisted a store manager of a Franchise store with submitting an appeal to the IPT. The Appeal was against a decision by Immigration New Zealand (INZ) to decline the individual’s application for residence, under the SMC, on the ground that the provisions of a franchise agreement were such that it could not be said that the individual’s role was a substantial match to the role of Retail Manager.

In a move that will be welcomed by Franchisees and their employees, the IPT has found that even where there is a franchise agreement, it is still possible for a Store Manager employed in with a Franchisee to demonstrate their role is skilled (as required by the SMC), if the true nature of their employment (and the available evidence) supports such a claim. Ultimately INZ must assess the individual franchise business which manages the employee, each owner/manager relationship and each applicant’s duties and responsibilities in order to assess whether each role is “skilled”.

Details of Appeal

By way of background, a residence application had been lodged by a Franchisee’s Manager. When considering the application, INZ found that franchise agreement was a legally binding document which “trumped” any other documents and information provided by the applicant and his employer demonstrating how he performed his duties as Retail Manager. This was despite extensive information and documents being provided to INZ which clearly showed that the Manager was largely responsible for managing the store and performing the core tasks of a Retail Manager. INZ ultimately declined the residence application.

“Lane Neave advocated strongly against the conclusions made by INZ.”

In submitting an appeal to the IPT, Lane Neave advocated strongly against the conclusions made by INZ and demonstrated that, despite the existence of the a franchise agreement, there was nevertheless sufficient scope for the Store Manager to be able to demonstrate they met the description and core tasks of a Retail Manager, as set out under the Australian and New Zealand Standard Classification of Occupations description (ANZSCO).

The IPT agreed with our submissions and found that the existence of the franchise agreement did not automatically “trump” all the other information and documents that INZ had been provided during its processing of the application. The IPT cancelled INZ’s decision and returned the application back to INZ to be reconsidered.

What does this decision mean for a Franchisor?

The findings by the IPT are of significance to Store Managers employed by Franchisees. They will be important in terms of both temporary work visa applications as well as residence applications. As many franchise owners and their employees will be aware, for temporary work visas, the difference between being classified as a Retail Manager or Retail Supervisor is the difference between being entitled to a three-year work visa or only a 12 month work visa.

“INZ will also have to stop making automatic conclusions based on the franchise agreement and actually consider each applicant’s position description as required by policy.”

We are very pleased with the outcome of this decision. It is significant in that the IPT has clearly set out that a franchise agreement does not automatically preclude someone employed within a franchise as a Store Manager being found to be working at the level of a Retail Manager. A copy of this decision will be forwarded to INZ and therefore it will need to follow the IPT’s findings when considering any current and future residence and Essential Skills work visa applications lodged by Store Managers working in other franchise stores. Finally, INZ will also have to stop automatically concluding that a franchise agreement is a legally binding document which trumps any other documentation or information provided by a store manager, and actually consider the documentation provided by each applicant showing how they perform each duty set out in the ANZSCO description for a Retail Manager.

Of course, although it is a positive outcome and holds promise for other applicants employed by franchises, it has not made these applications a “slam dunk”. We are cautiously optimistic that this case will prove useful to helping secure successful outcomes for other cases, but it is important to be aware that these applications are still complex and each one will be decided based on the specific circumstances in that case.

How can we help?

With a 150 year history, Lane Neave is one of New Zealand’s largest and most highly regarded full service law firms. We have built a culture of collaboration and excellence and believe legal services are about more than just the law. At Lane Neave, we believe it’s about great people, delivering quality work and outstanding client service.

To find out more about how we can support you and your employees through the visa and immigration process please get in touch with our Immigration Team.

contact us

contact

Mark WilliamsMark Williams
Partner, Lane Neave

t +64 3 353 1063
m +64 21 222 2363
e mark.williams@laneneave.co.nz

Rachael MasonRachael Mason
Partner, Lane Neave

t +64 3 372 6323
m +64 21 1306 540
e rachael.mason@laneneave.co.nz

Daniel KrugerDaniel Kruger
Partner, Lane Neave

t +64 9 300 6262
m +64 27 517 4828
e daniel.kruger@laneneave.co.nz

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