Employers sponsoring foreign workers under subclass visas 482 and 494 have new labour market testing (LMT) requirements to comply with. These requirements commence from 1 October 2020, due to recently introduced legislation. This article outlines:
- the LMT requirements;
- exemptions to these requirements; and
- alternative arrangements.
What Evidence is Required?
Essentially, all 482 and 494 nominations must include evidence of three job advertisements, which include:
- one advertisement posted on JobActive; and
- two advertisements posted on either:
- a national recruitment website (such as Seek, Indeed, JORA, Glassdoor, LinkedIn);
- the accredited sponsor's business website;
- in print media with national reach; or
- on radio with national reach.
Note: prior to this change, only two job ads were required.
Despite the above changes, all other LMT requirements remain the same:
- Advertise jobs for at least 28 days/four weeks;
- Commence and complete advertising within the four months immediately prior to lodging the 482 or 494 nomination application;
- The job ads must include the
- job/position title;
- description of the skills, experience and qualification of the role;
- name of the sponsor (your organisation) or the name of the recruitment agency your business has engaged; and
- salary or salary range (unless the salary is above AUD$96,400).
LMT exemptions and alternative arrangements still apply to 482 nomination applications. However, there are no LMT exemptions for 494 nominations. All 494 nominations must satisfy LMT criteria.
Exemptions to Labour Market Testing for 482 Nominations
LMT is not required where an International Trade Obligation (ITO) applies. This occurs where the person you are nominating is:
- a citizen/national of China, Japan, Mexico, Thailand or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand or Singapore; or
- currently employed by an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand; or
- currently employed by an associated entity of your business that operates in a country that is a member of the World Trade Organisation (WTO). The person must be nominated in an executive or senior manager occupation for the purposes of international trade obligations, and must be responsible for the entirety (or a substantial part) of your company's operations in Australia; or
- nominated as an executive or senior manager occupation for the purposes of international trade obligations, and your business currently operates in a WTO member country or territory, and is seeking to establish a business in Australia; or
- 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 following occupations are considered to be Executives or Senior Managers for the purpose of ITO labour market testing exemptions:
- Advertising Manager
- Chief Executive or Managing Director
- Chief Information Officer
- Corporate General Manager
- Corporate Services Manager
- Finance Manager
- Human Resource Manager
- Sales & Marketing Manager
- Supply and Distribution Manager
Alternative Arrangements to LMT for 482 Nominations
LMT is not mandatory where:
- the position requires someone with an internationally recognised record of exceptional and outstanding achievement in a profession or field (e.g. sport, academia or research, or as a top-talent chef); or
- the nomination is lodged for an existing subclass 482 or 457 visa holder solely due to a change in earnings or business structure; or
- the nomination relates to an intra-corporate transfer; or
- the annual earnings for the position are at least AU$250,000; or
- the position nominated is a key medical occupation: i.e. most medical practitioners (excluding GPs), as well as ambulance officers and paramedics
In such circumstances, the employer must prepare a written submission explaining why a suitably qualified Australian worker could not be identified. The submission should also include information on why one of the above scenarios is applicable.
What About Employer Nominated Permanent Residency Visas (subclass 186)?
LMT is not a legislative requirement for the subclass 186 in either the direct entry or temporary residence transition streams. However, an employer's efforts to recruit an Australian worker can be considered in relation to whether the position is in fact genuine.
LMT is a critical requirement for all 482 and 494 nominations. As an employer, you need to provide sufficient evidence of efforts to recruit an Australian worker, or your nomination may be refused and you may lose government fees and the SAF levy.
From 1 October 2020, all 482 and 494 nominations must include three job advertisements and one of them must be advertised on JobActive. There are no exceptions for 494 nominations. However, in relation to 482 nominations, if eligible, LMT exemptions and alternative arrangements can apply.
Satisfying labour market testing requirements can be an incredibly complex and time consuming process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.