Business sponsors must demonstrate to the Department of Home Affairs (DHA) 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 went 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 Workforce Australia website (formally JobActive).
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.
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 (or salary range) of the position, if the salary will be below $96,400; 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 Workforce Australia;
- These advertisements must be posted on nationally available 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 an 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 in Australia on a full time basis in the nominated position for at least two years up until the nomination is lodged;
- The individual is a citizen or national of China, Vietnam, Thailand, Japan, Mexico or the United Kingdom;
- The individual is a citizen or permanent resident of South Korea, Singapore, Chile, Canada or New Zealand;
- The individual being nominated is a current employee of a business that is an associated entity of your business and the associated entity located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Phillippines, Singapore, Thailand or Vietnam. In addition to ASEAN country members, Canada, Chile, China, Japan, Mexico, South Korea and New Zealand are also included;
- 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)
What is an ‘associated entity’?
Associated entities are defined under Section 50AAA of the Corporations Act however in summary, associated entities are businesses or other bodies that are connected to each other in some way. This can include, one entity controls the other, the operations, resources of affairs of the business are material to the other, if they are related bodies corporate and if assets or investments are owned by one business in the other.
Do you require further assistance or information relating to sponsoring an employee?
Ethos Migration Lawyers work very closely with many businesses in Australia and globally with 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 our immigration lawyers who can discuss the process and requirements with regard to your specific business needs.