So what is Labour Market Testing (LMT)?
Business sponsors must demonstrate to the Department of Home Affairs that they are unable to fill the specific position within their business by an Australian worker.
To substantiate this requirement, the sponsor (employer) will need to provide evidence of labour market testing (LMT) unless a specified exemption or international trade obligation applies.
Labour Market Testing has been a requirement since 2013, however has recently gone through some further changes in response to the COVID-19 pandemic, which were added to strengthen the requirement. The changes, which were introduced on 1 October 2020, introduced the requirement of the sponsor advertising the job position on the Government’s Jobactive website. This requirement is in addition to the two advertisements already required under the scheme. These requirements are aimed at giving Australian permanent residents and citizens significant opportunity to attain employment positions before international workers are sponsored.
Since the COVID-19 pandemic our office has been recommending all business sponsors undertake Labour Market Testing regardless if it is required or not by the visa program (such as nominations for Employer Nominated (subclass 186) Visas)
What needs to be included in a the job advertisements?
The job advertisements must include:
- The name of the sponsor/employer;
- The title and description of the position available;
- The salary of the position; and
- The skills and experience needing to be possessed by the applicant.
What are the specific Labour Market Testing (LMT) requirements?
The original requirements for LMT were introduced to ensure that employers were making the available job vacancies available to Australian citizens and permanent residents and only when they could not be fulfilled, businesses could seek foreign nationals to fill the positions.
The employer must undertake LMT within the four months prior to lodging their TSS (subclass 482) nomination on the basis that they could not fulfil the position due to lack of skills, qualifications, or relevant work experience first of the local labour market.
When the employer/sponsor advertises the nominated occupation, they must meet the below criteria:
- They must post at least two job advertisements for the position in addition to an advertisement on JobActive;
- These advertisements must be posted on recruitment websites such as Seek, Jora and Indeed; and
- These advertisements must be ‘live’ for at least a 28 days.
When does a business not need to undertake Labour Market Testing?
There are a couple instances where business do not need to undertake the LMT requirements outlined above.
- Specified labour market testing exemptions; and
- If a International Trade Obligations (ITO) applies.
What are the Specified Exemptions for Labour Market Testing?
In the case of a major disaster within Australia, a sponsor may be exempt from undertaking the LMT requirements to assist in relief or disaster recovery. These exemptions apply to a sponsor and may include numerous nominations by that sponsor.
What are international trade obligations?
When the LMT requirements conflict with an Australian international trade obligation, they will not be considered as a requirement. These international trade obligations may relate to certain responsibilities under the World Trade Organisation, Fair Trade Agreements or General Agreement on Trade in Services.
The exemptions which are currently in place include:
- A citizen of a country which is a member of the World Trade Organisation (WTO) and that individual has worked on a full time basis in the nominated position for two years up until the nomination is placed;
- The individual is a citizen or national of China, Vietnam, Thailand, Japan, or Mexico;
- The individual is a citizen or permanent resident of South Korea, Singapore, Chile, Canada or New Zealand;
- Senior Managers who are employed by companies located in a WTO country and are being transferred within the company (intra company transfers (ICT)) and that individual is responsible for at least a substantial amount of the companies operation and also the establishment of new operations of that business in Australia
- In addition to the Senior Managers who are employed by companies located in a WTO countries, Senior Managers for intra company transfers from Malaysia, Philippines, Singapore, Thailand, Vietnam, Indonesia, Cambodia, Laos, Brunei and Myanmar are exempt.
What is a Senior Management position?
A Senior Manager or also known as an Executive Manager can be categorised by the below occupations:
- Advertising Manager (131113)
- Chief Executive or Managing Director (111111)
- Chief Information Officer (135111)
- Corporate General Manager (111211)
- Finance Manager (132211)
- Human Resources Manager (132311)
- Sales & Marketing Manager (131112)
- Supply and Distribution Manager (133611)
Do you require further assistance or information relating to sponsoring an employee?
Ethos Migration Lawyers are highly skilled in employer sponsored visa subclasses and are able to assess the LMT requirements and whether or not you or your nominated employee may fall into an exemption. The best course of action is to book in a consultation with one of our lawyers who can discuss the process and requirements in relation to your business with you.