Labour market testing process for sponsors

Labour market testing (LMT) is used by employers to show that there is a genuine need for skilled overseas workers due to a lack of availability in the Australian labour market. The process itself is a statutory requirement for visa subclasses such as the 482 Temporary Skill Shortage and the 494 Skilled Employer Sponsored Regional (Provisional) visas. It can also be used for other visas to demonstrate that the employer has been unable to find a suitable Australian worker.

As a statutory requirement, the processes and procedures for LMT can be quite strict, with a failure to comply often resulting in a refusal of the nomination. We often see employers who have tried to lodge a nomination themselves end up with a refusal due to a failure to properly complete LMT, as the criteria can be quite confusing and difficult to manage.

In this article, we outline the criteria for LMT, as well as the best practices to ensure that there are no issues with your nomination.

Criteria for labour market testing

The requirements for valid LMT are outlined in a legislative instrument referred to as LIN18/036. The criteria is quite specific, however any failure to meet it may result in a refusal so it is important to pay attention and ensure that your advertising material is up to standard. It is worth noting that in some specific circumstances, such as with some labour agreements, the LMT criteria can be slightly different. This article outlines the standard LMT requirements for 482 and 494 visa nominations.

The criteria for suitable LMT can be broken down as follows:

• There must be ads posted on two separate recruitment websites that have national reach
• The ads must be in English
• The ads must outline the tasks, skills, experience and qualifications required
• The ad must name the sponsoring employer or the name of the recruitment agency they have engaged
• The position must be specified as full-time
• The salary for the role must be listed, and can be shown as a range (not required if the salary is $96,400 or more excluding super)
• The ads must run for a minimum of four weeks (28 days)

It is possible to have one or more of the ads published in national print media, national radio or on the business’ website if they are an accredited sponsor, however the easiest method to provide evidence for is advertisements on popular recruitment websites. Furthermore, it is now possible to supply evidence of two or more overlapping periods totalling a minimum of four weeks, whereas in the past it was necessary for the advertising period to have been in one uninterrupted block.

Once completed, LMT is valid for a period of four months from the date the earliest ad was posted.

How to complete LMT

Drafting the ads

When drafting the advertisements for the role, it is important that the tasks, skills, experience and qualifications align with those listed in the ANZSCO classification of the nominated role. Nominations must specify an occupation that is listed in the relevant skilled occupation lists, which will be linked to an ANZSCO occupation. The ANZSCO details can be found online.

You should ensure that the tasks in the ad are comparable to those listed in ANZSCO and that any additional requirements, such as work experience or qualifications, are also included. If the tasks do not align, or include tasks for a different occupation, there is a risk that the Department will refuse on the basis that the ad did not align with the nominated role. If the ANZSCO tasks are not similar to the tasks in the role that you are seeking to fill, you may need to find a more suitable occupation.

Posting on advertising platforms

You must ensure that the ads are posted on two separate platforms and will be active for at least 28 days. The ads do not have to be posted on the same date, however it is important to keep in mind that they will only be valid for a period of four months from the date they were first posted.

Collating LMT evidence

The best way to prove that the ads have been active for the full 28-day period is to print out a copy of the full ad, which shows all content and the day the screenshot was taken, on both day one and day 28. This will show that the ad has been active for the entire period. You can also supply evidence of the receipt for a 28 day advertising period on the relevant website, or alternative evidence which clearly demonstrates the length of time it was active, however it is important to provide a copy of the ad as it was posted to demonstrate that it complies with all requirements.

Recording applications

When lodging the nomination, you will need to provide details about how many applications were received, how many positions were offered, and why applications were not accepted. As such, you should record how many applicants apply for the role and outline why they were not eligible if no positions were offered.

Exemptions

There are a number of exemptions to LMT that apply where the visa applicant would be exempt under an International Trade Obligation under Australia’s Free Trade Agreements or World Trade Organisation general agreements.

In effect, these exemptions apply in the following circumstances:

the nominee is a:

• citizen/national of China, Japan, Mexico, Thailand or Vietnam; or
• citizen/national/permanent resident of Canada, Chile, Korea, New Zealand, Singapore or the UK.

the nominee is a current employee of a company that is;

• an associated entity of the sponsor; and
• that associated entity is located in Canada, Chile, China, Japan, Korea, New Zealand or any ASEAN nation (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam);

the nominee is:

• a current employee of an associated entity of the sponsor's business and that associated entity operates in a WTO member country;
• nominated as an Executive or Senior Manager; and
• will be responsible for the entire or a substantial part of the company's operations in Australia.

the nominee:

• is nominated as an Executive or Senior Manager;
• is nominated by an overseas business sponsor operating in a WTO member country; and
• will be responsible for the establishment of a new operation of that business in Australia.

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 nominee is an existing 494 or 482 visa holder and the nomination is being lodged solely to facilitate a change in their annual earnings or employer due to a company restructure.

The nominee is an employee of an existing company overseas that is an associated entity of the Australian business (intra-corporate transfer)

The nominee will have annual earnings greater than $250,000.

[free_consultation]

Claim your consultation

If you are interested in getting more information about a work or skilled visa, get in touch with Australian Migration Lawyers for a free consultation.

[/free_consultation]

FAQs for labour market testing

When is labour market testing required?

Labour market testing is required when an employer is seeking to nominate an overseas worker for a subclass 482 or 494 visa.

How long is LMT valid for?

LMT is valid for four months from the date the ad was first posted.

Can I lodge a nomination before the advertising is complete?

You must ensure that the 28 day advertising period is complete before you lodge a nomination. Lodging prior to this date will result in a refusal of the nomination.

Is LMT required for a nomination transfer?

You are required to conduct LMT even when you are lodging a nomination to transfer an existing visa holder to work for your business.

Which platforms can I use for LMT?

LMT advertising must be posted on a recruitment platform with national reach. As such, social media websites such as Facebook or Instagram are insufficient. We recommend platforms such as LinkedIn, Jora, Workforce Australia, Seek or Indeed.

Do you need to advertise on Workforce Australia?

In the past, employers were required to post the ad on three platforms, with one being Workforce Australia. This has now changed, and it is no longer mandatory to post on that platform.