From 1 October 2020 a number of changes to Labour Market Testing requirements will take place to temporary and permanent employer sponsored visas. The Department of Home Affairs (Home Affairs) has said the aim of these changes is to ensure employers are prioritising the hiring and retention of Australian citizens and permanent residents.
The visa subclass impacted by these changes include the:
- 482 Temporary Skills Shortage (TSS) Visa,
- 494 Skilled Employer Sponsored Regional (Provisional) (SESR)
- 186 Employer Nomination Scheme (ENS) Visa and
- 187 Regional Sponsored Migration Scheme (RSMS) Visa.
We have provided an overview of the changes to each visa subclass below.
482 TSS Changes
From 1 October 2020 employers must place 3 ads each running for 4 weeks. At least 1 of these ads must be with JobActive, the Australian Government's recruitment website. The ads can run concurrently.
Advertising will not be required where an exemption (below) to labour market testing applies.
Exemptions to labour market testing
- Where International Trade Obligations preclude Australia from imposing Labour Market Testing;
- Intra-corporate transferees where a person is transferring from a company operating overseas to an associated entity in Australia;
- If the annual earnings of the position are at least $250,000;
- Nominations required by change of business structure or change of earnings of nominee;
- Positions requiring persons with internationally recognised skills in sport, academia or cuisine;
- Medical Practitioners in ANZSCO Minor Group 253, except ANZSCO 253111 and 253999;
- Ambulance Officers and Paramedics in ANZSCO Unit Group 4111.
Businesses lodging applications prior to 1 October 2020 will not be required to advertise on JobActive but can use this if they wish. Currently, 2 job ads must be run for 28 days each unless an exemption applies.
The contents (below) that must be included in job ads remains unchanged.
Contents of job advertisements
- position title
- skills and experience required for the position
- duties of the role
- name of business or recruitment agency; and
- annual remuneration as specific number or a range (unless above $96,400).
186 ENS/187 RSMS Changes
Home Affairs has updated its website to advise that it will be scrutinizing 186 ENS/187 RSMS visas more closely. No date has been released for this to take effect. We recommend all new 186 ENS/187 RSMS applications include additional information to address the higher level of scrutiny Home Affairs has announced.
When assessing186 ENS and187 RSMS visas Home Affairs will look at the businesses records for the last 12 months to determine whether roles similar to that nominated in the visa application have been:
- Had work hours, pay or conditions reduced
In addition, Home Affairs has also said it will more closely review:
- Whether the employer has employed a temporary visa holder on conditions less favourable than Australians;
- Recruitment of a temporary visa holder is beyond the ordinary scope of the business. [eg: a restaurant nominating an Accountant]
- Whether there is a genuine need for the position.
The above 3 criterion are already assessed as part of 186 ENS/187 RSMS applications. It is likely Home Affairs are re-iterating these as they will be looked are more closely in the future.
When establishing that there is a genuine need for a position Home Affairs has said it expects businesses to have advertised the role on JobActive. No information has yet been released about the format or length of the advertising. We will provide an update as more information becomes available.
Australia is enacting protectionist migration legislation as a result of the economic impact of Covid-19. We recommend all employers review their hiring practices and amend their labour marketing testing procedures to include JobActive. All employers should also keep records for at least 12 months of any redundancies or reductions in work hours or terms and conditions of employment for its staff.
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.