Same-Same, But Different: Sponsoring Cooks & Chefs

Yes, Chef!

I have always been fascinated by restaurants and the machinations within dining establishments. My interest piqued several years ago when I watched the film Burnt¹ featuring Bradley Cooper (as Head Chef Adam Jones) and Sienna Miller (as Helene Sweeney, one of the cooks). The part that most drew my attention was the film’s portrayal of a high-end, fine dining restaurant as a tightly regimented unit with a discernible hierarchical structure, much like a company of soldiers or a sea-going ship’s bridge. The Head Chef ordered commands, and all the cooks obeyed without hesitation.

In my professional career, I often provide consultancy advice and migration services to restaurant owners seeking to employ foreign nationals as suitably skilled kitchen staff, predominantly chefs and cooks.

Whilst many people might assume that all foreign chefs or cooks would have equal rights to obtain visas to work in Australia, the situation is not this simple. The types of visas available to chefs and cooks – and the possibility of whether a chef or cook can be sponsored by an Australian company – vary considerably depending on the employee’s exact rank within the chef/cook hierarchy.

Furthermore, an individual’s nationality may also impact upon the level of expertise as a chef/cook that they need to obtain to be sponsored in Australia.

Industry Jargon

It’s interesting to observe restaurant owners use their own peculiar vernacular when alluding to their staff. “Front of house” refers to the visible staff diners see in a restaurant. These are the restaurant managers, the waiters and the sommeliers, to name a few. “Back of house” refers to the unseen cooking staff working in the kitchen. These are, amongst others, the kitchen hands, the cooks and the (more senior) chefs.

Laypersons refer to all the back of house staff who prepare, cook and present the ordered meals as “chefs”, even though there is a much more nuanced differentiation. Those in the hospitality industry also often tend to use the job title “chef” interchangeably with “cook”. While these two labels are often used synonymously, they are treated markedly different by migration authorities, as explained further below.

Below is an illustration of a typical “back of house” kitchen hierarchy at a fine dining restaurant or a 5-star hotel:

Below we explain the different rights of the various roles.

Different rights for different types

One visa which foreign workers rely on to work in Australia is the 482 Temporary Skills Shortage (TSS) visa.

This allows foreign workers to work in roles where there is determined to be a skills shortage in Australia, so long as an Australian employer is able to “sponsor” their employment.

If an individual’s occupation is not on the skills shortage list, then they are not able to apply for this visa.

In the hospitality industry waiters, barpersons and kitchen hands are not on the skills shortage list, but certain types of cooks and chefs are.

Cooks and chefs, however, have very different rights under the relevant visa provisions: Chefs are eligible for a 4-year 482 TSS visa with a possible pathway to apply for permanent residence through a 186 Employer Nominated Scheme visa. On the other hand, cooks are only eligible to apply for a 482 TSS visa with an initial visa validity of 2 years (and an option to apply for another 2-year 482 TSS visa afterwards). Crucially, based on the current immigration framework, cooks are not eligible to apply for a 186 Employer Nominated Scheme permanent residence visa².

How is a chef/cook’s level of skill assessed?

Generally, applicants for a 482 TSS visa must demonstrate that they possess at least two years’ relevant employment experience in their nominated occupation (i.e. chef/cook)³.

So, if an individual intends to obtain the 4-year 482 TSS visa (with a pathway to permanent residency), they will be required to show that they have worked as the appropriate level of chef for at least two years when they apply for the visa. It would not be sufficient to show that they had several years’ experience as a cook if they had only risen to the rank of chef, less than two years ago.

To satisfy the skill requirement for a 482 TSS visa, the applicant must attach documentary evidence to their visa application demonstrating they meet the relevant criterion. Employment references signed and dated on a previous or current employer’s letterhead confirming the individual’s title, occupation and duties undertaken for the period employed will usually be required.

In addition, visa applicants who hold specific passports are required to apply for and obtain a positive skills assessment as a cook or as a chef before they lodge a 482 TSS visa. Mandatory skills assessments⁴ are required for applicants holding the following passports and are nominated for the following occupations⁵:

* There are no assessment centres in these countries. Applicants are required to travel to a TRA-approved assessment centre in Australia or a TSS or OSAP nominated country for a skills assessment.

The mandatory skills assessment must be carried out by one of four Registered Training Organisations (RTOs)⁶, namely:

The four RTOs all differ slightly in their approach to skills assessments. But all four RTOs require – in addition to food preparation, cooking and presentation duties – that for someone to be classed as a chef they need to have certain management experience.

In addition, all four RTOs stipulate that for someone to be classed as a chef for migration purposes, they generally need to be classed as either a Sous Chef or Head Chef. The William Angliss Institute puts it this way:

“…the nominated occupation of Chef refers to applicants employed in a Head/Sous Chef role with kitchen management responsibilities. If you currently report to a Head/Sous Chef in your workplace, you are considered as a Cook for your Skills Assessment nominated occupation.”¹¹

This illustrates that even though an applicant may have been working as a “Chef de Partie”, “Commis Chef” or “Demi Chef” for a number of years, they are likely to be only classified as a cook if they have been working underneath a Head Chef or Sous Chef. In other words, having “Chef” in your job title is by no means a guarantee that you will be regarded as a chef for migration purposes.

Strangely, it is likely that for foreign nationals who do not have to undertake a skills assessment, there is a broader range of levels they can work at that will satisfy the definition of “chef”.

The Australian and New Zealand Standard Classification of Occupations (ANZSCO) Dictionary which the immigration authorities rely on to classify roles, lists “Chef de Partie”, “Commis Chef”, “Demi Chef”, “Second Chef” and “Sous Chef” as all falling within the classification of “chef” (rather than cook)¹².

If an immigration case officer just relies on this list of occupations when assessing an applicant’s visa application it may be possible that, for example, a United Kingdom passport holder will only have to provide employment references evidencing two years’ experience as a Chef de Partie, to be granted a 482 TSS visa as a chef for 4 years and be eligible to apply for a 186 Employer Nominated Scheme permanent residence visa later on.

On the other hand, a South African passport holder with exactly the same experience will need to obtain a positive skills assessment as a chef before lodging their 482 TSS visa application. As noted above, experience as a Chef de Partie is likely to regarded as experience as a cook (rather than as a chef) as part of the skills assessment. This will mean the applicant is only likely to be granted a 482 TSS visa for 2 years with an option to apply for another 2-year 482 TSS visa. This will, in turn, mean that they will not be eligible to apply for a 186 Employer Nominated Scheme permanent residence visa at all.

Challenges for small businesses

The sharp distinction between cooks and chefs may also be problematic for smaller dining establishments that do not have the expansive kitchen brigade of larger restaurants. Smaller restaurants where the back of house staff is limited to 1 or 2 employees often blur the occupational designations where these staff members “do it all” from formulating menus, preparing meals, ensuring stock rotation, managing the cooking roster, and even wash dishes and clean the kitchen.

It is therefore likely to be more difficult to demonstrate that a “do it all” back of house, kitchen position comes within the definition of “chef” rather than “cook”, meaning that such businesses may struggle to attract or retain foreign employees who will only be able to secure a two year 482 Visa (with no pathway to permanent residency) if they are classified as a cook.

Overseas Students

Many foreign nationals come to Australia under a subclass 500 student visa to study a Certificate III or IV in Commercial Cookery or a Diploma in Hospitality Management. These overseas students often intend to apply for another visa or visas after completing their studies that will lead to permanent residence in Australia.

One point that should be remembered is that although such studies may equip the students with the appropriate Australian formal qualifications to work as cook or chef, they will still need to demonstrate that they have two years’ relevant employment experience if they wish to obtain a 482 TSS visa. Unless they have obtained this cook/chef employment experience in their home countries before coming to study in Australia or have been employed in a part-time capacity while they studied, they are unlikely to be able to meet this 482 TSS visa work requirement. Experience as a casual employee in such a role in Australia will not be sufficient to meet this 482 TSS visa work requirement.

An alternative for these student visa holders would be to apply for a 485 Skilled Graduate Visa to obtain the relevant employment experience to become eligible to apply for a 482 TSS visa later on.

Conclusion

It is very important that businesses (and visa applicants) carefully consider whether it would be more appropriate to classify employees as cooks or chefs when applying for visas. Failure to classify applicants correctly can have serious consequences and potentially jeopardise an individual’s right to remain in Australia temporarily or permanently.

It could mean all the difference between being an Adam Jones or a Helene Sweeney.

If you require any assistance with your migration or visa needs, please contact us for a confidential discussion.

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References

(2015), directed by John Wells and distributed by TWC.
See https://www.legislation.gov.au/Details/F2019L00275. ANZSCO 351411 Cooks are, however, on the Regional Occupations List and eligible to apply for a 187 Regional Sponsored Migration Stream (RSMS) permanent residence visa https://www.legislation.gov.au/Details/F2019L00276 and the new 494 Skilled Employer-Sponsored Regional Temporary Residence Visa https://www.legislation.gov.au/Details/F2019L01403 and eventually the 191 Skilled Regional Permanent Residence Visa from 16 November 2022: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/skilled-regional-191
See here: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482/medium-term-stream#Eligibility and here: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482/short-term-stream#Eligibility
https://www.legislation.gov.au/Details/F2018L00294
https://www.tradesrecognitionaustralia.gov.au/programs/tss-skills-assessment
https://www.tradesrecognitionaustralia.gov.au/programs-tss-skills-assessment/rto-finder
https://attc.org.au/migrant-pathways/temporary-skills-shortage/
https://www.vetassess.com.au/skills-assessment-for-migration/trade-occupations/guides-and-fact-sheets
https://www.vu.edu.au/skilled-migration-assessment-services-smas/eligibility-application/temporary-skill-shortage-tss-occupations-regions
https://www.angliss.edu.au/industry/tss-osap-skills-assessment
https://www.angliss.edu.au/industry/tss-osap-skills-assessment/faqs/#TSScookchef
https://www.abs.gov.au/ausstats/abs@.nsf/Product+Lookup/1220.0~2013,+Version+1.3~Chapter~UNIT+GROUP+3513+Chefs