Temporary Skill Shortage 482 Visa:(LMT) Requirement

May 19, 2018

Alongside many other toughened requirements made under the introduction of the Temporary Skill Shortage (TSS) visa (subclass 482) to reinforce program objectives is the amendment to the Labour Market Testing (LMT) requirement.

Effective 18 March 2018

LMT is to be required for all TSS applications unless international trade obligations apply. There will no longer be exemptions based on the skill level of the nominated occupation.

No suitably qualified/experienced Australian

The Department of Home Affairs (DOHA) must be satisfied that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’. Generally if no contrary evidence exists, this requirement is considered met so long as the evidence of LMT provided has demonstrated that the advertising had sufficient coverage and was carried out for a reasonable duration.

Advertising:

The nominated position has been advertised in Australia
The advertisement was in English and included the following information:
- Position title and/or job description
- The name of the approved sponsor or the recruitment agency being used
- Annual earnings for the position, unless the annual earnings exceed the Fair Work High Income Threshold which is currently at AUD$142,000
At least two advertisementswere published
- On a national recruitment website (e.g. jobactive.gov.au)
- On a recruitment website ‘with national reach’; is prominent and/or professional and publishes advertisements for positions all over Australia
- A general classifieds website or an advertisement only on social media such as Twitter or Instagram is not an acceptable
- In national print media, such as national newspapers or magazines that are published at least monthly and marketed throughout Australia
- On national radio, or radio with ‘national reach’; radio programmes that are broadcast or syndicated nationally
- On the business’s website, only if the sponsor is accredited

If the advertisement is published on a website it is expected that the advertisement would have ‘remained live’ for at least 21 consecutive calendar days.

If the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days.

Alternative evidence of LMT

Alternative evidence can be considered sufficient to demonstrate that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’ under the following circumstances

If the nominated position is one where the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research.

Evidence:

A submission explaining why the individual nominated is the only person, or one of very limited persons, who could undertake the nominated position and no Australian worker is available

If the nominated position is currently held by an existing TSS for which a new nomination has been lodged because:

Annual earnings for the nominee have changed, or
There is a change in business structure that has resulted in the nominee’s employer lodging a new application to be a standard business sponsor

Evidence:

The same LMT evidence provided in the original nomination
A statement is required that explains that the visa holder is remaining in the same position.

Required period of LMT

LMT must be completed in the 6 months prior to the lodgement of the nomination application. Applications lodged before 18 June 2018 will need to have completed the LMT requirement in the 12 months before the nomination application is lodged.

If any Australian workers have been made redundant or retrenched from the same or similar occupations in the sponsor’s business or associated entity in the four months prior to lodging the application, LMT must start from the point of the redundancy or retrenchment.

In the latter situation, information on the redundancy or retrenchment should be provided alongside LMT evidence.

Evidence of LMT

Evidence must be provided that shows that the sponsor has attempted to suitably qualified and experienced Australian citizens or permanent residents for the position or for similar positions.

This would include documents related to advertising and should contain the details of fees/other expenses paid or payable for that advertising. For example, details of website or newspaper advertising undertaken, and any invoices showing the fees.

If fees were paid for advertising, the following documents should be provided:

A copy of the advertisement
Receipt for fees paid

If fees were not paid for advertising, the following documents should be provided:

A copy of the advertisement

Evidence of advertising

Evidence of any advertising, whether paid or unpaid, of the position and any similar positions must be provided:

If a similar ad was placed in multiple formats and/or platforms, and the details of how widely the position has been advertised is provided in the nomination form, only one copy of the advertisement is required
Renewal of TSS nomination applications are expected to meet the LMT requirement again before engaging the TSS holder for a further sponsorship
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) – there is no requirement that the sponsor placed the advertisement themselves.

Read: TSS 482 Visa – Renewals

Evidence of fees associated with advertising

Details of the fees and any other expenses paid or payable must be provided:

A document containing details of any advertising expenses
If no fees are payable it would be beneficial to provide evidence of this

Sponsors could provide additional information regarding their attempts to recruit an Australian worker (citizen or permanent resident)

Examples of additional information could include and is not limited to:

Information about the sponsor’s involvement in relevant job and career exhibitions
Details of fees and expenses paid or payable for any other types of recruitment activities
Details of the results of such recruitment activities including details of any positions filled as a result of these activities
Copies or references to research relating to labour market trends or in relation to the nominated occupation, that has been released in the four months prior to the application
Expressions of support from Commonwealth, State/Territory government authorities with responsibility for employment matters

DOHA concerns

These are situations in which the DOHA may continue to have concerns regarding LMT despite evidence provided. In understanding these you may avoid such mistakes:

When advertising undertaken does not appear to have been for the same position as that nominated
When the nominee themselves advertised the position
If terms and conditions advertised appear to be significantly less favourable than those being offered to the nominee or would be offered to an equivalent Australian worker
The date of the employment contract the is before advertising was performed

International trade obligations – Exempt from LMT

Where international trade obligations (ITOs) apply, the nomination may be exempt from LMT.

Free Trade Agreements (FTAs)
World Trade Organisation (WTO) General Agreement on Trade in Services (GATS)

Find: World Trade Organisation member countries

LMT is exempt in the following situations:

The applicant is a citizen/national of the People’s Republic of China, Thailand or Japan, or s citizen/national/permanent resident of Chile, the Republic of Korea, or New Zealand
The applicant is a current employee of a company that operates in Chile, New Zealand, the Republic of Korea, Japan, the People’s Republic of China, or any ASEAN nation*, and is being nominated by an associated entity of that business that operates in Australia
The applicant is a current employee of a business that is both operating in a WTO member country and an associated entity of the Australian sponsoring business and is being nominated for an Executive or Senior Manager position**, and is to be responsible for the entire or a substantial part of the company’s operations in Australia
The applicant is an Executive or Senior Manager** and is nominated by an overseas business sponsor operating in a WTO member country and is to be responsible for the establishment of a new operation of that business in Australia
The applicant is a citizen of a WTO member country and is being nominated by an employer for whom the applicant has worked in Australia on a continuous, full time basis, for the two years immediately before the nomination is lodged, AND
- The applicant is remaining in the same nominated position under the same employer, or the new sponsor is still an associated entity of the original sponsor, OR
- The applicant is nominated for a different position within the business but has a specialised knowledge at an advanced level of a proprietary nature of the company’s operations

* ASEAN countries include Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam

** Eligible Executive or Senior Manager positions include: