Updated Labour Market Testing Instrument - Migration (Labour Market Testing) Amendment

From 4 July 2022 a new labour market testing instrument comes into effect - Migration (labour market testing) Amendment Determination (LIN 22/064) 2022. This instrument amends Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018, to reflect the new name of the Australian Government’s employment website - Workforce Australia (previously jobactive).

The updated instrument will ensure that labour market testing advertising is able to continue after the transition from jobactive to Workforce Australia. Job advertisements placed on jobacitve by advertisers prior to the change on 4 July 2022 will be migrated to Workforce Australia.

Overview of Labour Market Testing

For some visa types, you must show that you can't find a suitable Australian worker. For these visas, if an employer nominate an overseas worker, you will need to test the local labour market.

Labour market testing (LMT) generally involves advertising the position in Australia.

How and when employers test the labour market, and what proof they require, will depend on which stream you are nominating under.

TSS visa (subclass 482) Short-term stream and Medium-term stream and Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) Employer Sponsored stream labour market testing.

When sponsors nominate an applicant they must provide a copy of the advertising material used to advertise the position (that is, copies of all advertisements that meet the advertising requirements).

For most nominations, the position must have been advertised for at least four weeks within the four month period immediately prior to lodging the nomination application.

If an Australian citizen or permanent resident worker has been made redundant or retrenched from the nominated occupation within 4 months before lodging the nomination application, the advertising must have occurred since the date of the redundancy or retrenchment.

Note: Information about these redundancies or retrenchments must also be provided with the nomination.

In addition, the advertising of the nominated position must meet all of the requirements below:

• The advertisement was in Australia, in English and included the following information:
  • The title, or a description, of the position
  • Note: multiple positions in one advertisement is acceptable
  • The skills or experience required for the position
  • The name of the approved sponsor or the name of the recruitment agency being used by the sponsor
  • The salary for the position - if the annual earnings for the position are lower than AUD96,400
  • Note: it is acceptable to publish a salary range (for example, AUD80,000 to AUD90,000).
• At least 2 advertisements were published in any of the below:
  • On a prominent or professional recruitment website with national reach that publishes advertisements for positions throughout Australia
    • Industry specific recruitment websites relevant to the occupation that are in significant use by the industry are an acceptable method of LMT advertising
    • 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 with national reach
  • On the business' website if the sponsor is an accredited sponsor.
• Advertisements, including on websites, are expected to have run for at least 4 weeks
• Applications or expressions of interest for the advertised position must have been accepted for at least 4 weeks.

Note:

• The nominated position may be advertised in the same medium (such as newspaper advertisements, on two separate occasions) or in any two different mediums simultaneously, or on two separate occasions
• 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.

New Requirements for nominations

In September 2020, the Australian Government introduced new labour market testing measures for employer sponsored applications. In addition to the 2 advertisements mentioned above:

• the nominated position must be advertised on the Government’s Workforce Australia website
• the Workforce Australia advertisement must have included all of the information required to be included in the other 2 advertisements mentioned above
• Workforce Australia advertisements are expected to have run for at least 4 weeks
• applications or expressions of interest for the advertised position must have been accepted for at least 4 weeks.

Note: 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 a total of 3 advertisements, including an advertisement published on the Government’s Workforce website, must be provided at the time the nomination is lodged.

TSS visa (subclass 482) and Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) Labour Agreement stream labour market testing

Sponsors must provide LMT proof when requesting a labour agreement. Where the labour agreement specifies, you must also provide proof of LMT when you nominate an applicant.

LMT is not required where a Minister of Religion Labour Agreement (MoRLA) is being sought.

Global Talent Employer Sponsored (GTES) labour market testing

Sponsors must provide evidence of LMT when requesting a GTES agreement.

You must provide proof for each specific occupation sought under the GTES agreement at the time of your online application.

Sponsors must provide evidence of two attempts for each specific occupation to recruit qualified and experienced Australians. These attempts must have been conducted in the last 12 months prior to lodging the nomination application.

Under the GTES, there are no prescribed requirements for the content or duration of advertisements. We will assess whether any advertisement genuinely tests the Australian labour market.

NO BORDERS LAW GROUP: #1 TRUSTED MIGRATION LAWYERS

Email: service@noborders-group.com

Tel:  +61 7 3876 4000

Consultation:  https://www.noborders-group.com/form/free-consultation

We will help you by exploring visa options and securing an application. If you would like to discuss your visa options and evaluate the pathway to permanent residency, please make an enquiry  or book a consultation to get expert advice with one of our knowledgeable and experienced Migration Agents/Lawyers on 07 3876 4000 or email: service@noborders-group.com.