Are you a qualified overseas worker?
Do you have an employer willing to sponsor you for a Temporary Skill Shortage (TSS) visa (482), Employer Nomination Scheme (ENS) visa (186) or a Regional Sponsored Migration Scheme (RSMS) visa (187)?
If yes, your employer must conduct and meet the Labour Market Testing (LMT) requirements BEFORE lodging a nomination application. Failing to do this may result in a refusal of your application.
For a nomination to be approved, it is mandatory under the Act to provide evidence of the sponsor’s efforts to find suitably qualified and experience Australian citizens or permanent residents to fill the position.
Changes to Labour Market Testing
Even though Labour Market Testing has been implemented for a while, the Department of Home Affairs (DoHA) has recently introduced stricter requirements which are yet to be implemented.
DoHA has announced that there will be changes to LMT requirements which is expected to be implemented during the first quarter of 2018-2019. Until such time, LMT should be conducted in accordance with the Current LMT Requirements Procedure.
LMT is required for all employer sponsored visas unless International Trade Obligations (ITO) apply.
Current LMT Requirements Procedure
The sponsoring employer must conduct a Labour Market Testing for the position (occupation) that they wish to nominate the applicant for (unless International Trade Obligations (ITO) applies) and must be undertaken:
- if the nomination application was lodged before 18 June 2018, the LMT must have been conducted within the previous 12 months before the nomination application was lodged; OR
- if the nomination application was lodged on or after 18 June 2018, the LMT must have been conducted within the previous 6 months before the nomination application was lodged; OR
- if within 4 months after the nomination was lodged and the sponsor or an associated entity made any Australian or permanent resident employee redundant or retrenched them from the position that is being nominated. Information about the redundancies or retrenchments must be provided with the application.
New LMT Requirements
The new LMT requirements are as follow:
- LMT is required to be completed within 4 months prior to lodging a nomination
- The LMT must be conducted for a period of 4 weeks (instead of 21 days)
- The Ad must include the skills and experience required to be qualified for the position being advertised.
The Department has made it clear that further information on the new LMT requirements will be provided closer to the implementation date.
How to Prove That the LMT Conducted by the Sponsoring Employer Meet the Requirements?
It is extremely important that the method and content of the advertisement meet all LMT requirements. There is no requirement that the sponsor has to place the advertisement themselves, they can use a third party.
The LMT requirements are as follow:
- The position must be advertised in Australia.
- The advertisement must be in English and include:
- A position description
- The name of the approved sponsor (or name of the recruitment agency that is advertising the position for the sponsor)
- The annual salary for the position (note: it is possible to publish a salary range).
- A minimum of 2 separate platforms on any of the following platforms:
- On a national recruitment website (e.g. Jobactive, Seek, Indeed, Adzuna) and the Ad must remain live for at least 21 consecutive calendar days;
- National print media where applications or expressions of interest for the position remain open for acceptance for at least 21 consecutive calendar days;
- National Radio where applications or expressions of interest for the position remain open for acceptance for at least 21 consecutive calendar days;
- On the business’s website if the sponsor is accredited.
Evidence must accompany the nomination application and cannot be provided subsequently. It must indicate that the LMT was undertaken within the required period before lodging the application.
We highly recommend that your sponsoring employer keeps track of any responses received through the advertisements as well as any receipts and copies of the advertisements. All this information must be provided as part of the nomination application, otherwise the application may be refused.
Where LMT May Be Refused
Despite evidence of LMT being provided, we’ve seen cases where LMT was refused due to some certain conditions that weren’t satisfied such as:
- The advertising undertaken does not appear to have been for the same position as that nominated;
- The nominee themselves advertised the position;
- The terms and conditions advertised to the local market appear to be significantly less favourable than those being offered to the nominee – i.e. the salary advertised was significantly less
- The contract pre-dates the LMT evidence (i.e. the nominee was offered the job before it was advertised).
Sponsors should make sure to update their labour market testing procedures to be in line with the requirements. Failing to do so may result in delays or a nomination refusal (and this is the last thing we want).
The sponsor must satisfy the LMT requirements.
LMT exemption applies if:
- Due to a major disaster in Australia
- On the basis of the skill level of a group of occupations
- For specific occupations
IMPORTANT: At the moment there are no instruments in place which provide exemptions under the TSS program.
Labour Market Testing is not required if International Trade Obligations (ITO) apply.
How Can We Help?
Agape Henry Crux (formally known as Crux Migration) can represent you and your sponsoring employer from start and until a decision is made on your employer sponsored visa application. As part of our service, we will guide your sponsoring employer through Labour Market Testing ensuring the position description and all other factors meet all requirements before they start conducting LMT.
You and/or your sponsoring employer can book a consultation with one of our Migration Agents by clicking below.