Labour Market Testing (LMT) is a means as to determine the genuinity of an application, in seeing that the employer has exhausted all options in procuring the right candidate from the Australian labour market before seeking to sponsor an overseas worker.
LMT is one of the critical conditions to be met when applying for a Temporary Skill Shortage (TSS) visa (subclass 482) and evidence is to be provided at the time of application.
As of 12 August 2018, LMT requirements vary depending on if the nomination is for a select position. Some changes to the advertising requirements and time period have also been effected.
Please note that the SAF requirement also came into effect on 12 August 2018.
Find: TSS, ENS & RSMS Visas: Skilling Australians Fund In effect From 12 August 2018
Select position
Nominations for ‘select positions/occupations’ are not required to provide evidence of advertising. For ‘select positions’, a written submission by the employer providing reasons why a suitably qualified and experienced Australian citizen or permanent resident, ot other eligible temporary visa holder is not available to fill the position. Select positions are:
- A position that requires that it is filled by an individual who has an internationally recognised record of exceptional and outstanding achievement in:
- Sport
- Academia and research
- Top talent chef
- A position that requires that it is filled by an individual who is employed by a company operating an established business overseas and the sponsor is an associated entity of that company that is operating in Australia
- A position that is held by an existing TSS 482 visa holder or 457 visa holder for which a new nomination has been lodged because the annual earnings of that visa holder have changed or there is a change in business structure which resulted in the employer having to lodged a new standard business sponsor application
- A position for which the annual earnings would be at least AUD$250,000
- A position under ANZSCO occupation groups [253] Medical practitioners that is not [2531111] General Medical Practitioner or [253999] Medical Practitioners nec
- A position under ANZSCO occupation group [4111] Ambulance Officers and Paramedics
No suitably qualified/experienced Australian worker
For nominations lodged on or after 12 August 2018 unless the nominated position is a ‘select position’. Evidence of a copy of the advertising must be provided if the nomination. Please note that whilst largely the same, there are a few changes to please read the following carefully. In meeting the LMT requirement, the advertising of the position must fulfil the following:
- The nominated position has been advertised in Australia
- The advertisement was in English and included the following information:
- Position title and/or job description
- Skills or experience required for the position
- 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$96,4000
- At least two advertisements were 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
The employer must be have the advertisement published and be accepting applications for at least 28 consecutive calendar days.
Be aware that the Department of Home Affairs (DOHA) will be on the lookout for any information that might show that the application is not of a genuine nature. This could include:
- That the applicant themselves advertised the position
- The terms and conditions advertised in the position are significantly less favourable than those being offered to the applicant or what an equivalent Australian worker would receive
- The employment contract is dated before the LMT evidence
Two advertisements
The position may be advertised:
- In the same medium on two separate occasions
- Any two different mediums simultaneously
- Any two different mediums on two separate occasions
Required period of LMT
Previously LMT was required to be completed in the 6 months prior to the lodgement of the nomination application. Effective 12 August 2018, this has now been reduced to 4 months ending on the day 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.
Exemptions
From 18 March 2018, no exemptions are available for the LMT requirement unless international trade obligations apply. Previous LMT exemptions will not carry over if the visa holder is being nominated for a second TSS visa.
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:
- Chief Executive or Managing Director [111111]
- Corporate General Manager [111211]
- Sales and Marketing Manager [131112]
- Advertising Manager [131113]
- Corporate Services Manager [132111]
- Finance Manager [132211]
- Human Resource Manager [132311]
- Supply and Distribution Manager [133611]
- Chief Information Officer [135111]
Do you need help with your TSS application? Book a consultation with us and save yourself the headache of understand how to fulfil its many toughened requirements. Call +61 2 8054 2537, 0434 890 199 or book online.
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