THE LABOUR MARKET TESTING (LMT) REQUIREMENT FOR THE NEW TEMPORARY SKILL SHORTAGE VISA (TSS)
Information obtained from The Department of Home Affairs (DHA), Migration Regulations 1994 (Cth), Migration Act 1958 (Cth) and current Migration Policy.
What is Labour Market Testing?
In relation to a Nominated Sponsorship position, Labour Market Testing (LMT) means testing of the Australian Labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian Permanent Resident is readily available to fill the positon.
In accordance with changes to Migration law in March 2018, Standard business sponsors must test the local labour market prior to lodging a nomination application and attach evidence of this to their Sponsorship Application.
Circumstances where LMT is not required
LMT is not required, however, where it would conflict with Australia’s international trade obligations, in any of the following circumstances:
- the worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore;
- the worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China, Japan, South Korea or New Zealand;
- the worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation (WTO), where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia;
- your business currently operates in a World Trade Organisation (WTO) member country or territory and is seeking to establish a business in Australia, where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations;
- the worker you nominate is a citizen of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.
Possible ‘Major Disaster’ Exemption to the LMT requirement
The Minister may exempt a sponsor from the LMT requirement if the Minister is satisfied that an unusual event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has had a significant impact on a number of individuals, that a government response is required and the specified nominee is desirable in order to assist the disaster relief or recovery.
Are you an applicable sponsor for LMT?
Applicable Sponsors must provide the following evidence of their attempts to employ Australian Citizens or Permanent Resident:
· a copy of the advertisement(s);
· receipt(s) for any fees paid.
Your nomination application will be refused if this evidence does not accompany the nomination.
PERIOD OF TIME within which labour market testing is required to be undertaken:
- If the nomination application was lodged before 18 June 2018:
within the previous 12 months prior to lodging a nomination application
- If the nomination application was lodged on or after 18 June 2018:
within the previous six months prior to lodging a nomination application
- If the nomination application was related to an Australian citizen or permanent resident worker being made redundant or retrenched from their positions in the nominated occupation:
Within 4 months of the date of redundancy/retrenchment.
Note: when this occurs, information about these redundancies or retrenchments must also be provided.
How the Department decides that a suitable qualified and experienced Australian worker was not available to fill the nominated position:
The Department would generally be satisfied that this requirement is met provided the advertising meets all of the below:
- the nominated position has been advertised in Australia;
- the advertisement was in English and included the following information:
o the title, or a description, of the position;
o the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
o the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142, 000).
- at least two advertisements were published:
o on a national recruitment website (for example jobactive).
Note: a general classifieds website is not an acceptable method;
o in national print media;
o on national radio; or
o if the sponsor is accredited – on the businesses' website.
- if the advertisement is published on a website, it is expected that the advertisement would have 'remained live' for at least 21 consecutive calendar days;
- if the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days;
- advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency) - there is no requirement that the sponsor placed the advertisement themselves.
Under policy, alternative evidence can be considered sufficient to demonstrate that 'a suitably qualified and experienced Australian worker is not available to fill the nominated position', where the nominated position is a position:
- in relation to which the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research;
- held by an existing TSS or subclass 457 visa holder for which a new nomination has been lodged solely because:
o the annual earnings that will apply to the nominee have changed;
o a change in business structure has resulted in the nominee's employer lodging a new application to be approved as a standard business sponsor.