Navigating Labour Market Testing - Employer Sponsored

Catch Up on the Latest Immigration News - subscribe to the Migration Affairs Newsletter for regular immigration updates and resources.

Employers sponsoring foreign workers through subclass 482 and 494 visas must comply with Labour Market Testing requirements. ?It is crucial to ensure that your business conducts labour market testing accurately and within the specified duration as a failure to do so may result in the refusal of the nomination application. This newsletter delves into the LMT prerequisites and details how your business can meet the necessary criteria.

What is Labour Market Testing (LMT)?

Section 140GBA of the Migration Act 1958 (Cth) outlines the LMT condition.

LMT is a recruitment campaign a business must conduct if they wish to sponsor a foreign worker on a TSS 482 or SERS 494 visa. Prior to sponsoring a foreign worker through these visa programs, the company must initially assess the Australian job market. The underlying principle is to prove that the position could not be filled by a qualified Australian permanent resident or citizen. ?

What are the LMT requirements?

Essentially, all 482 and 494 nominations must include evidence of three job advertisements that satisfy the following criteria:

• Period: Commence and complete advertising within the four months immediately prior to lodging the visa nomination application
• ?Method: One advertisement posted on?Workforce Australia and two advertisements posted on either:- a national recruitment website with ‘national reach’ in Australia (such as Seek, Indeed, Jora, and LinkedIn)- if the sponsor is an accredited sponsor, the approved sponsor’s business website- in print media with national reach in Australia (such as national newspapers or magazines published at least monthly and marketed throughout Australia); or- on radio with national reach (such as radio programs that are broadcast or syndicated nationally).
• Job ads must be in English and include the following details:- title, or a description, of the position;- description of the skill or ?experience for the role;- the name of the sponsor (your organisation) or the name of the recruitment agency your business has engaged and- salary or salary range (unless the salary is above AUD$96,400)
• ?Duration: Applications for an advertised position must be accepted for at least 4 weeks or 28 days from posting the advertisement.??

For detailed legislative information on LMT, refer to the Migration (LIN 18/036: Period, Manner, and Evidence of Labour Market Testing) Instrument 2018.

When does LMT not apply for 482 Nominations?

You do not have to conduct LMT if an International Trade Obligation (ITO) applies, such as when the nominated worker is:

• citizen/national of China, Japan, Mexico, Thailand, or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, Korea, New Zealand; or Singapore; or
• currently employed by an associated entity of your business that is located in Canada, Chile, China, Japan, Korea, New Zealand or any ASEAN country; or
• currently employed by an associated entity of your business that operates in a country that is a member of the WTO. The person must be nominated in an executive or senior manager occupation for the purposes of international trade obligations, and must be responsible for the entirety (or a substantial part) of your company’s operations in Australia; or
• nominated as an executive or senior manager occupation for the purposes of international trade obligations, and your business currently operates in a WTO member country and is seeking to establish a business in Australia; or
• a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged.

When do alternative LMT arrangements apply to 482 Nominations?

Certain ‘select occupations’ and ‘select positions’ are exempt from the standard LMT requirements regarding manner, period, and timing. These occupations/positions are those:

• that relate to an intra-corporate transfer (ICT)
• held by a subclass 482 or 457 visa holder for which a new nomination has been lodged solely due to a change in earnings or business structure
• that requires someone with an internationally recognised record of exceptional and outstanding achievement in a profession or field such as sport, academia, or research, or as a top-talent chef
• for which the annual earnings for the position are at least AU$250,000
• within:- ANZSCO Minor Group 253 – Medical Practitioners (except General Medical Practitioner ANZSCO 253111 and Medical Practitioners nec ANZSCO 253999)- ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics

In such circumstances, the sponsor must prepare a submission explaining why a suitably qualified and experienced Australian citizen or permanent resident is not readily available to fill the nominated position.

Is it possible for LMT advertising to be carried out by a third party?

Yes, advertising can be undertaken by a third party if they are commissioned or authorised to do so by the sponsor. This includes associated entities or contracted parties like recruitment agencies.

What is considered a recruitment website with a 'national reach' in Australia?

The recruitment website with 'national reach' in Australia encompasses prominent or professional recruitment websites that publish job advertisements throughout the country. It also includes industry-specific recruitment websites relevant to specific occupations that are widely used in the industry.

Additionally, LinkedIn's online recruitment platform is included, except for job vacancies restricted to LinkedIn profile members. The jobs portal of a general classifieds website is also considered part of this category.

The classifieds portal of a general classifieds website is not considered part of the recruitment website with 'national reach.' Additionally, any advertisements solely through social media notifications, such as Twitter or Instagram, are excluded from this category.

A recent update by the Department of Home Affairs regarding the LMT ‘duration’ requirement

The Department of Home Affairs confirmed that advertising and accepting applications or expressions of interest over two or more non-consecutive periods do not satisfy the labour market testing condition, even if the total period in which applications or expressions of interest were accepted is greater than four weeks in duration.

The Department has taken this stance because it considers that the use of the term ‘duration’ in both subsection 140GBA(6AB) and subsection 8(5) of LIN 18/036 signifies an intention for labour market testing to be conducted continuously, rather than in distinct non-consecutive periods. Additionally, the temporal language in subsection 8(5) indicates that the duration of the labour market testing is fixed from the date of the publication of the first advertisement and continues to run until the conclusion of the four-week period.

For a clearer perspective, let's consider practical examples:

Scenario 1: Two Overlapping Advertisements

Two advertisements are run on the same platform, with the first running from 2 May [Jenny N2]?2023, to 24 May 2023 (21 days), and the second from 23 May ?2023 to 14 June ?2023 (21 days).

These advertisements align with the LMT requirement as they allow for the assurance that applications or expressions of interest can be received for a continuous duration of at least four weeks. ?

Scenario 2: Two Back-to-Back Advertisements

Two back-to-back advertisements are run on the same platform, where the first runs from 2 May 2023 to 24 May 2023 (21 days) and the second from 25 May 2023 to 5 June 2023 (12 days).

These advertisements do not meet the LMT requirements as advertising is not carried out over a continuous duration of 4 weeks.

Concluding thoughts

It is paramount for employers sponsoring foreign workers through subclass 482 and 494 visas to diligently adhere to the LMT requirements. The implications of failing to conduct LMT accurately and within the specified timeframe can lead to the unfortunate rejection of a nomination application, which can be a costly setback for your business.

In light of recent updates, it's imperative to note that the duration of LMT is a critical aspect that requires continuous advertising for a minimum of four weeks. The clarification provided by the Department emphasises the need for uninterrupted recruitment efforts to fulfill LMT requirements.

By following these guidelines and staying informed about the latest developments in LMT, businesses can navigate the visa nomination process successfully and secure the foreign talent they need.

Remember, Migration Affairs is here to support you. Contact our immigration experts for personalised advice on your circumstances and eligibility.

Your success in this journey is our success.

Changes to the migration program can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.

Contact Migrations Affairs to speak with our immigration experts for tailored advice on the circumstances and eligibility.

Immigration and Visa Resources ??

• Guide for Hiring Overseas Workers
• Expanded Pathway to Permanent Residency for All 482 Visa Holders from 25 November 2023
• Partner visa (subclass 820/801 and 309/100): Frequently Asked Questions
• New Zealand Citizens: Direct Pathway to Australian Citizenship
• Permanent Residence (Skilled Regional) Visa (Subclass 191): Frequently Asked Questions
• Aged Care Industry Labour Agreement: Sponsorship for Nursing Support Workers, Personal Care Workers, and Aged or Disabled Carer

?