Important Information – Labour Market Testing (LMT) Regulations Guide

On August 12th 2018 the Department of Home Affairs officially implemented the new Labour Market Testing (LMT) requirements for sponsoring skilled visa workers.

The enacting of the LMT legislation has now brought multiple new regulations into effect, requiring employers demonstrate to the Department that they have tested the Australian labour market to ensure that no suitable local workers were available to fill the intended role.

The new LMT requirements will apply to the TSS visa program and will affect all streams, including:

  • The Short and Medium term streams.
  • Labour Agreement streams.
  • The Global Talent scheme.

TSS visa sponsors are now required to demonstrate they have tested the local labour market before lodging a nomination application for new and existing visa holders.

Evidence of this must then be submitted to the Department by uploading to ImmiAccount unless International Trade Obligations (ITOs) apply.

Previously, occupation-based exemptions to the LMT requirements were available to visa sponsors, however these are no longer accessible under the TSS visa program.

LMT Requirements

TSS visa nominations that were lodged on or after 12 August will now be subject to the following LMT requirements:

  • Time Period
    • LMT must be undertaken within four months immediately before lodging a visa nomination.
    • The advertisement must have run for at least four weeks from the time of initial publication.
    • Applications or expressions of interest for the position must have been accepted for at least four weeks.
  • Advertising Requirements
    • The job advertisement must be in Australia.
    • It must be written in English.
    • It must contain the following information:
      • The job title, or a description of the role.
      • The skills or experience required for the position.
      • The name of either the visa sponsor, or the recruitment agency being used by the sponsor.
      • The salary—or salary range—for the job, if the annual earnings for the role are lower than $96,000.
    • The job advertisement must be published at least twice in any of the following mediums:
      • In national print media, such as in newspapers or magazines with a nationwide circulation that are published at least once a month.
      • On a professional recruitment website with national reach such as JobActive.
        • General classified websites such as Gumtree or advertisement through social media is not considered an acceptable form of LMT by the department.
        • However, LinkedIn—posted on LinkedIn’s online recruitment platform only—is considered to be an acceptable advertising platform for LMT purposes.
      • On national radio.
      • On the employer’s website if the business is an accredited sponsor.

Employers must also provide the Department with evidence of their LMT activities by uploading a copy of the advertising material to ImmiAccount as part of their nomination application, or it will be automatically refused.

However, in some specific cases alternative requirements will apply, and sponsors will instead by required to make a written submission to the department explaining why a local Australian worker is not available to fill the position.

Alternative requirements will be applied by the Department in the following circumstances:

  • The position is part of an intra-corporate transfer.
  • If the annual earnings for the role exceed $250,000.
  • The occupation requires the applicant to have an internationally recognised record of exceptional and outstanding achievement in a given profession or field.
    • This can range from professional athletes to academics, researchers, film directors or top-talent chefs.
  • If the role is within the ANZSCO Minor Group 253 – Medical Practitioners (except General Practitioner (ANZSCO 253111) and Medical Practitioners nec (ANZSCO 253999)) or ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics.
  • If the position is held by an existing TSS or subclass 457 visa holder for whom a new nomination has been lodged because either:
    • A change in business structure has resulted in the nominee’s sponsor lodging a new application to be approved as a standard business sponsor.
    • The annual earnings that will apply to the nominee have changed.

International Trade Obligations (ITOs)

The Department has also confirmed that exemptions to the LMT requirements will apply if it would otherwise bring Australia into conflict with its ITOs.

Exemptions based on ITOs will apply in the following situations:

  • If the nominated worker is a citizen of:
    • Japan
    • China
    • Thailand
  • If the nominated worker is a citizen or permanent resident of:
    • Chile
    • South Korea
    • New Zealand
    • Singapore
  • If the worker you nominate is a current employee of a business that is an associated entity of your business, and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country, including:
    • Brunei
    • Myanmar
    • Cambodia
    • Indonesia
    • Laos
    • Malaysia
    • Philippines
    • Singapore
    • Thailand
    • Vietnam
    • Chile
    • China
    • Japan
    • South Korea
    • New Zealand
  • The nominated worker is a citizen of a World Trade Organisation (WTO) member country or territory, and has previously worked for you in the nominated position in Australia on a full-time basis for at least two years.
  • If the worker you nominate is a current employee of an associated entity of your business, and that entity operates in a WTO country, and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia.
  • If your company currently operates in a WTO country and is in the process of establishing an associated business in Australia, and the nominated occupation is an Executive or Senior Manager position.

These new regulations must be stringently adhered to avoid processing delays and/or refusal of visa applications.

If you have any questions or would like us to assist with your global immigration queries, simply click this link to schedule a call with one of our Registered Migration Agents  http://absoluteimmigration.com/schedule-a-call/ OR call 1300 ABSOLUTE (1300 227 658).