Employer-sponsored visas offer a pathway for skilled workers to contribute their expertise and fill labour shortages in Australia. To ensure that local workers are given priority and opportunities for employment, the Australian Department of Home Affairs has implemented labour market testing (LMT) requirements. LMT must be completed by an employer before nominating a foreign employee to work within the Australian business.
A welcomed implementation of the UK-AUS Free Trade Agreement from 1 July 2023 has meant that employers do not need to go through the LMT process to nominate UK nationals to work in Australia – now within a list of countries exempt from the LMT process.
When is Labour Market Testing needed?
LMT is mandatory for various employer-sponsored visa subclasses, including the Temporary Skill Shortage (TSS) visa (subclass 482), and the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). Employers must demonstrate that they have made genuine efforts to recruit Australians before nominating a foreign worker for a position.
What is the process of Labour Market Testing?
The process for completing LMT includes the requirement to advertise the nominated position on at least three job advertisement platforms, including the mandatory government platform, Workforce Australia. The LMT must run typically for at least four weeks and have the capacity to reach a broad audience of potential applicants. Advertisements must be in English and generally need to include details such as job title, description, skills/qualifications/experience required, and salary range. The advertisements should be posted on prominent job websites, national newspapers, or relevant professional platforms.
The process of LMT can delay the ability for employers to bring aboard new (and urgently needed) employees, as the job advertisements need to run for at least 28 days before a nomination application can be lodged. This can be problematic for employers and overseas workers, particularly when the worker is yet to commence employment or the nominee’s visa is about to expire.
What exemptions apply?
LMT exemptions are specific circumstances where employers are not required to undertake the standard advertising process when sponsoring foreign workers for certain visa subclasses in Australia. These exemptions are designed to accommodate situations where it may be impractical or unnecessary to conduct LMT. These include nominations subject to Intra-Company Transfers, positions covered by International Trade Obligations (ITO), or Highly Specialized Occupations.
Under Australia’s ITO provisions, employers looking to nominate individuals from the following countries do not need to conduct LMT: China, Japan, Malaysia, Mexico, Thailand, Vietnam or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand, Singapore or the United Kingdom. More countries are included in this list if the nomination is a transfer from an overseas associated entity.
It’s important to note that the LMT requirements are stringent. While LMT exemptions exist, they are subject to specific criteria and conditions. Employers must ensure that their circumstances meet the requirements for exemption before relying on them. It is important seek professional advice to determine whether a particular position is eligible for an LMT exemption. Contact a member of our Migration Law team for more information about whether your nominated employee qualifies for a LMT exemption.