As an employer wanting to sponsor an employee for the TSS 482 visa or Skilled Employer Sponsored Regional (Provisional) visa 494 visa, you will need to show that you have made an effort to hire an Australian worker but have not been able to find a suitably qualified candidate. The Department of Home Affairs (‘DOHA’) calls this process Labour Market Testing (‘LMT’). Failing to satisfy the LMT requirements can lead your nomination to an instant refusal so it is vital to ensure that proper guidelines are followed with your advertisements and reports.
This article will provide a general overview of LMT and provide steps on how to get the LMT provisions right the first time.
Step 1: Check if the International Trade Obligations or specified exemptions apply
LMT generally involves advertising the nominated position in Australia. However, if you are exempt or alternative arrangements apply, you do not need to advertise the nominated position to satisfy the LMT requirements.
International Trade Obligations (‘ITO’)
LMT is not required where it would conflict with Australia’s ITOs. This occurs where the person you are nominating is:
- a citizen/national of China, Japan, Mexico, Thailand or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand or Singapore; or
- currently employed by 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 or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand; or
- currently employed by an associated entity of your business that operates in a country that is a member of the World Trade Organisation (‘WTO’). The person must be nominated in an executive or senior manager occupation for the purposes of international trade obligations, and will be responsible for the entire or a substantial part of your company’s operations in Australia
- your business currently operates in a WTO member country or territory and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs; or
- the nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged.
The following occupations are considered to be Executives or Senior Managers for the purpose of ITO LMT exemptions:
- Advertising Manager (131113)
- Chief Executive or Managing Director (111111)
- Chief Information Officer (135111)
- Corporate General Manager (111211)
- Corporate Services Manager (132111)
- Finance Manager (132211)
- Human Resource Manager (132311)
- Sales & Marketing Manager (131112)
- Supply and Distribution Manager (133611)
On the other hand, specified exemptions provide that LMT is not mandatory where:
- the position requires someone with an internationally recognised record of exceptional and outstanding achievement in a profession or field (e.g. sport, academia or research, or as a top-talent chef); or
- the nomination is lodged for an existing subclass 482 or 457 visa holder solely due to a change in earnings or business structure; or
- the nomination relates to an intra-corporate transfer; or
- the annual earnings for the position are at least AU$250,000; or
- the position nominated is a key medical occupation: i.e. most medical practitioners (excluding GPs), as well as ambulance officers and paramedics
Note: In the case of specified exemptions, it is best to accompany a detailed submission in writing. Get in touch with our team at Hummingbird Legal to find out how you should prepare one.
Step 2: Be specific
If you have ruled out that the ITO arrangements or specified exemptions do not apply, you must satisfy the general LMT requirements and provide evidence of it.
The LMT requirements imposed by DOHA are very particular so your advertisements should be very detailed to meet the provisions.
Advertising of the nominated position must meet all of the following:
- the advertisement was in Australia, in English and included the following information:
- the title, or a description, of the position. Note: multiple positions in one advertisement is acceptable;
- the skills or experience required for the position;
- the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
- the salary for the position – if the annual earnings for the position are lower than AUD96,400. Note: it is acceptable to publish a salary range (for example, AUD $60,000 to AUD $70,000).
- at least three advertisements were published:
- One advertisement must be advertised on the Australian Governments Jobactive website.
- The other two on a prominent or professional recruitment website with national reach (for example, Seek, Indeed, Careerone) that publishes advertisements for positions throughout Australia.
- industry specific recruitment websites relevant to the occupation that are in significant use by the industry are an acceptable method of LMT advertising.
- a general classifieds website or an advertisement solely through social media notification (such as Twitter or Instagram) are not acceptable methods. LinkedIn’s online recruitment platform is acceptable for LMT purposes. Job vacancies restricted to LinkedIn profile members only are not acceptable for LMT purposes.
- in national print media (that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia);
- on national radio with national reach; or
- on the business’ website if the sponsor is an accredited sponsor.
- the nominated position may be advertised in the same medium (such as newspaper advertisements, on two separate occasions) or in any two different mediums simultaneously, or on two separate occasions
- 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.
Step 3: Time is of the essence
Timing of your advertisements are crucial. As with how the contents of the advertisements need to be specific, you will also need to ensure that you comply with the strict time requirements.
Failure to follow the strict time limit will cause a significant detriment on the nomination and your nomination may be refused even if the rest of the criteria is met.
You must make sure that:
- the advertisements accept applications or expressions of interest for at least four weeks after it was first published;
- advertisements, including on websites, run for at least four weeks; and
- the relevant nomination application is lodged within the four month period of advertising the position under the LMT provisions
Step 4: Present your LMT evidence correctly
Finally, it is important to understand what evidence is required to show that your business has carried out LMT correctly. A well prepared and successful nomination will always be supported by evidence of LMT at the time of application.
When lodging the relevant nomination application, you must immediately accompany the advertising material used to advertise the position, that is, copies of all advertisements, evidence of any payment made in order to publish any advertisements that required payment and the details of any applications you received.
Sadly, many neglect the importance of the gist of the LMT and the reason why LMT has become more difficult to have it approved. We have recently observed that merely just supplying the materials to satisfy the criteria without any substantive reasons has been assessed at the Tribunal level with high scrutiny.
As the main point of the LMT provisions is that the sponsoring employer has attempted to hire an Australian worker but has not been able to find a suitably qualified candidate locally, it is essential to address how you came to your decision in hiring the nominated employee over others.
This is why preparing a detailed and genuine LMT report is absolutely vital and it will go hand in hand with the rest of the nomination criteria, especially, the genuine need for the nominated position within the business.
Our experienced migration lawyer can advise you of all the specifics and options on your 482/494 visa nomination including the LMT requirements and help you prepare the relevant documents and reports ahead of lodging your nomination.
Get in touch with our team at Hummingbird Legal today.
Disclaimer: this article does not provide legal advice or form a lawyer-client relationship. If you wish to seek immigration assistance given your unique circumstances, please consult with a registered migration agent, immigration lawyer or the Department of Home Affairs.
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