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What is Labour Market Testing?

26 Mar 19

In the ever-changing landscape of immigration law, the only constant in recent years has been change itself. This is particularly true in the space of Employer Sponsored Visa categories, writes Salvos Legal Commercial Mitigation Agent Poorvaja Nirmaleswaran.

In March 2018, we were introduced to the Temporary Skill Shortage (TSS) Program, a ‘new and enhanced’ version of the 457-visa program. With it came myriad of changes implemented over the last year, including:

  1. The introduction of the caveats or ‘non-applicability’ clauses;
  2. The introduction of the Skilling Australians Fund Levy (SAF); and
  3. Mandatory Labour Market Testing.

The Labour Market Testing requirements, in particular, have been a sticking point for organisations.

What is Labour Market Testing?

Put simply, Labour Market Testing is a record of your attempts to recruit locally. Many organisations do this all year, whether it be on their website, through recruiters or by way of pre-paid advertisements slots.

The problem, however, lies in the manner and duration in which your business has advertised.

Meeting the Labour Market Testing Requirements

When lodging a Nomination application on behalf of a potential employee, you must attach evidence of the Labour Market Testing before submitting the application or it will be refused.

For applications lodged on or after 12 August 2018, this advertising must be done:

  • within the 4 months immediately before lodging a nomination application
  • if within these 4 months, any Australian citizen or permanent resident workers are made redundant or retrenched from positions in the nominated occupation – then it must be since the date that these events occurred.

The advertising material itself must meet all of the below:

  • the advertisement must have been completed in Australia in English and include the following information:
  • the name of the approved sponsor (i.e. employer) or the name of the recruitment agency being used by the sponsor;
  • the title, or a description, of the position. Multiple positions in one advertisement are acceptable;
  • the skills or experience required for the role;
  • the salary for the position if the annual earnings for the position are lower than AUD96,400. A salary range is acceptable.

At least 2 advertisements meeting these requirements must be published in the following mediums:

  • posted online:
  • on a prominent or professional recruitment website with national reach (for example jobactive.gov.au, Seek). This cannot include a general classifieds website or an advertisement solely through social media notification (such as Twitter or Instagram).
  • LinkedIn’s online recruitment platform is acceptable for LMT purposes provided it is not restricted to LinkedIn profile members only.
  • industry specific recruitment website that are in significant use by the industry are also an acceptable method of LMT advertising.
  • in national print media— newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia.
  • on national radio— radio programs that are broadcast or syndicated nationally or
  • on the business’ website if the sponsor is an accredited sponsor.

The nominated position may be advertised in the same medium or in any two different mediums simultaneously, or on two separate occasions. Advertising may also have been undertaken by a third party if authorised by the organisation to do so.

Duration of advertising

Advertisements including on websites, are expected to have run for at least 4 weeks and applications or expressions of interest for the advertised position must have been accepted for at least 4 weeks.

Meeting requirements

If you have been recruiting for a position in your business and have an ideal candidate who is a foreign national, please contact Salvos Legal’s Commercial Migration Agents, Richard Hardy (richard.hardy@salvoslegal.com.au) or Poorvaja Nirmaleswaran (pnirmal@salvoslegal.com.au)  to undertake an eligibility assessment under the Temporary Skill Shortage Program.

Disclaimer: The content contained in this article is of a general nature only and provides an overview on matters of interest. It is not, nor is it intended to be legal advice. You should seek legal or other professional advice before acting or relying on any information contained in this article.

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