Labour Market Testing (LMT) for TSS update

The list of acceptable mediums in which nominated positions may be advertised has been extended to include LinkedIn’s online recruitment platform and industry specific recruitment websites that are relevant to the nominated occupation

Standard business sponsors must test the local labour market before lodging a nomination application (for a new or existing visa holder) and must attach evidence of this in ImmiAccount as outlined below unless an International Trade Obligation (ITO) applies.

For the TSS visa program, there are currently no instruments in place which provide any other exemptions, for example:

 
  • for specific occupations
  • on the basis of the skill level of group of occupations (example ANZSCO skill level 1 or 2) or
  • due to a major disaster.

Note: occupation-based exemptions which were previously available under the Temporary Work (Skilled) visa (subclass 457) are not available under the TSS program.

While there are currently no further exemptions under the TSS program, the Department is accepting alternative LMT evidence for certain cohorts of applicants as described below – see Alternative evidence below.

International trade obligations (ITOs)

LMT is not required where it would conflict with Australia’s international trade obligations, in any of the following circumstances:

 
  • the worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore
  • the worker you nominate is a current employee of a business that is an associated entity of your business and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China, Japan, South Korea or New Zealand
  • the worker you nominate is a current employee of an associated entity of your business and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of international trade obligations and the nominee 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 international trade obligations
  • the worker you nominate is a citizen of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

Countries which are currently WTO members are listed on the WTO website.

 
  • An international trade obligation means a commitment made by Australia under an international trade agreement.  
  • As per the DFAT website, the China-Australia Free Trade Agreement (ChAFTA) does not cover Hong Kong, Macau or Taiwan.

Method of LMT for standard business sponsors

The Migration Amendment (Skilling Australians Fund) Bill 2018, passed by the Parliament of Australia on 9 May 2018, is expected to be implemented during the first quarter of 2018-19. There will be changes to the LMT requirement at that time, including requiring LMT to be conducted:

 
  • for a period of four weeks
  • no more than four months before the nomination is lodged
  • such that advertisements set out any skills or experience requirements that are appropriate to the position.

Further information will be provided closer to implementation.

Until such time that the above changes are implemented, LMT should continue to be undertaken in accordance with the arrangements set out below.

Period in which LMT must have been undertaken

LMT must have been undertaken:

 
  • if the nomination application was lodged before 18 June 2018 - within the previous 12 months before lodging a nomination application
  • if the nomination application was lodged on or after 18 June 2018 - within the previous six months before lodging a nomination application
  • if within four months of lodging the nomination application, and if the sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched them from positions in the nominated occupation - since the date that these events occurred. Note: when this occurs, information about these redundancies or retrenchments must also be provided.

Method and Content of LMT advertising

Under policy, the Department would generally be satisfied that the LMT requirement is met provided the advertising meets all of the below:

 
  • the nominated position has been advertised in Australia
  • the advertisement was in English and included the following information:
 
  • the title, or a description, of the position Note: multiple positions in one advertisement are acceptable
  • the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
  • the annual earnings for the position—unless the annual earnings will be greater than the Fair Work High Income Threshold. Note: it is acceptable to publish a salary range—for example AUD80,000 to AUD90,000.
 
  • at least two advertisements were published in any of the below:
 
  • on a prominent or professional recruitment website with national reach (for example jobactive.gov.au) that publishes advertisements for positions throughout Australia.
     
  • Note: industry specific recruitment websites relevant to the occupation that are in significant use by the industry are an acceptable method of LMT advertising.
  • Note: 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—that is, radio programs that are broadcast or syndicated nationally or
  • on the businesses' website if the sponsor is an accredited sponsor.
 
  • the nominated position may be advertised in the same medium (on two separate occasions) or in any two different mediums simultaneously or on two separate occasions
  • 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
  • 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.

Evidence of LMT

Sponsors must provide evidence of attempts to recruit suitably qualified and experienced Australians (unless an international trade obligation applies).

This includes a copy of the advertisement(s) and receipt(s) for any fees paid. If this evidence does not accompany the nomination application in ImmiAccount, it will be refused.

Alternative Evidence

Alternative evidence can be considered sufficient to demonstrate LMT where the nominated position is a position:

 
  • in which the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research.
 
  • Provide a submission explaining why the specific individual nominated is the only person, or one of very few people, who could undertake the nominated position and no Australian worker is available.
 
  • held by an existing TSS or subclass 457 visa holder for whom a new nomination has been lodged solely because:
 
  • the annual earnings that will apply to the nominee have changed or
  • a change in business structure has resulted in the nominee's employer lodging a new application to be approved as a standard business sponsor.
  • Provide a submission explaining the earnings change or the business restructure, including details of the existing TSS or subclass 457 visa holder remaining in their current position.
 
  • relating to an intra corporate transfer (ICT). Note: an intra-corporate transfer is the transfer of an existing employee of a company to another branch or associated entity of that company operating in Australia.
 
  • Provide a formal letter of transfer or other documentation outlining the intra-corporate transfer arrangement.

Transitional arrangements for LMT undertaken before 18 March 2018

Transitional arrangements currently apply for LMT undertaken before 18 March 2018, provided the sponsor has made genuine efforts to recruit Australian workers, consistent with Migration Act requirements. These arrangements apply as it is understood that recruitment processes may already have been underway, or completed, at the time of TSS visa program implementation, and employers may need time to adjust their recruitment processes.

The advertising evidence provided will generally be accepted if the advertisement would have met pre 18 March 2018 LMT arrangements.

The advertising conducted pre 18 March 2018 must still have been advertised in Australia and in English, however, the Department will take a flexible approach to other LMT advertising requirements including:

 
  • certain type of information included in the advertisement
  • the period an individual advertisement remained 'live', and
  • in terms of the number of advertisements that meet the specified criteria.

Contact Nevett Ford Immigration Lawyers today if you need advice or assistance.

Telephone: +61 3 9614 7111

Email: Melbourne@nevettford.com.au