Compulsory Labour Market Testing for the TSS Visa and the exemptions that apply under Australia’s International Trade Obligations (ITO’s)
Labour Market testing and Free Trade Agreements when sponsoring working under the TSS visa
The Government announced in April of this year that the Temporary Work (Skilled) visa (subclass 457) would be abolished and replaced by the Temporary Skill Shortage (TSS) visa in March 2018. Following this announcement, businesses have contemplated the impact that these changes would have on the current exemptions that exist for labour market testing. It has been confirmed that where certain international trade obligations are applicable, businesses will be exempt from labour market testing.
What is labour market testing and why are exemptions important?
The Labour market testing criterion is assessed by the Department when considering a nomination application. In a basic sense this requires the decision maker to be satisfied that ‘no Australian citizen or permanent resident is readily available who has suitable qualifications and experience’. This criteria is generally satisfied by providing evidence that the business has actively canvassed the Australian labour market through advertising and other recruitment efforts, detailing those who responded to such efforts and outlining the reasons as to why those persons were considered unsuitable for the position requiring the business to recruit internationally.
What exemptions are available under Australia’s international free trade obligations for labour market testing?
The aforementioned compulsory labour market testing for the new TSS Visa will not apply where relevant International Trade obligations exist. Under subsection 140GBA(2) of the Migration Act 1958 (the Act) it has specified the a range of international trade agreements under which the imposition of labour market testing would be inconsistent with those obligations.
The applicable trade obligations are as follow:
- The Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement
- The General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization
- The Singapore-Australia Free Trade Agreement
- The Thailand-Australia Free Trade Agreement
- The Australia-United States Free Trade Agreement
- The Australia-Chile Free Trade Agreement
- The ASEAN-Australia-New Zealand Free Trade Agreement
- The Malaysia-Australia Free Trade Agreement
- The Korea-Australia Free Trade Agreement
What will this mean for businesses?
This means that in the following circumstances businesses will be exempt from compulsory labour market testing required by the TSS visa:
- If the worker being nominated as a current employee of a business that is an associated entity of your business that is locates in an Association of South- East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile and New Zealand.
- If the the worker you nominate is a current employee of an associated entity of your business, operating in a country that is a member of the World Trade Organization, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the company’s operations in Australia either entirely or substantially.
- If your business is operating in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed as an “Executive or Senior Manager”.
- Alternatively, if the nominated worker is a citizen of a World Trade Organisation member country and has worked in Australia on a full- time basis for the last two years.
The legislative instrument that outlines which international trade obligations apply can be found here.