Labour Market Testing is a requirement for the Temporary Skill Shortage (TSS) (subclass482) and Skilled Employer Sponsored Regional (subclass 494) visa.

Business sponsors are required to show the Department of Home Affairs (DHA) that the specific position cannot be filled by an Australian worker.

To fulfill this requirement, sponsors (employers) must provide evidence of labour market testing (LMT), unless they qualify for a specified exemption or are subject to an international trade obligation.

These regulations ensure that Australian permanent residents and citizens have ample opportunity to secure employment before international workers are considered.

Do I need to undertake Labour Market Testing?

As a general rule, your business will have to complete labour market testing, UNLESS:

1. Specified labour market testing exemptions apply; and
2. If an International Trade Obligations (ITO) applies.

Exemptions apply when hiring for senior manager or executive manager roles, specifically for the following occupations:

• Advertising Manager (131113)
• Chief Executive or Managing Director (111111)
• Chief Information Officer (135111)
• Corporate General Manager (111211)
• Finance Manager (132211)
• Human Resources Manager (132311)
• Sales & Marketing Manager (131112)
• Supply and Distribution Manager (133611)

What are ITO obligations:

ITO obligations may relate to responsibilities under the World Trade Organisation (WTO), Free Trade Agreements, or the General Agreement on Trade in Services. When LMT requirements conflict with an Australian international trade obligation, they are not required.

Current exemptions include:

• A citizen of a WTO member country who has worked full-time in the nominated position in Australia for at least two years prior to nomination.
• Citizens or nationals of China, Vietnam, Thailand, Japan, Mexico, or the United Kingdom.
• Citizens or permanent residents of South Korea, Singapore, Chile, Canada, or New Zealand.
• Individuals nominated who are current employees of a business that is an associated entity of your business and located in an ASEAN country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, or Vietnam), as well as Canada, Chile, China, Japan, Mexico, South Korea, and New Zealand.
• Senior Managers from companies in a WTO country being transferred within the company (intra-company transfers) who are responsible for significant company operations or establishing new operations in Australia.
• Senior Managers from companies in WTO countries, as well as those from Malaysia, Philippines, Singapore, Thailand, Vietnam, Indonesia, Cambodia, Laos, Brunei, and Myanmar, for intra-company transfers.

No exemption applies? No Problem.

The below guide is a snapshot of what is needed to satisfy the LMT requirements to sponsor an employee for a TSS visa.

Step 1: job advertisement

There are specific requirements that must be met for job advertisements when wanting to sponsor someone.

The job advertisements must contain:

·           The sponsor’s/employer’s name

·           The title and description of the available position

·           The salary (or salary range) if it is below $96,400

·           The skills and experience required for the role

Step 2: Labour Market Testing requirements

Employers must conduct LMT within the four months preceding their TSS (subclass 482) nomination, demonstrating the position could not be filled due to a lack of skills, qualifications, or relevant work experience in the local labour market.

When advertising the nominated occupation, employers/sponsors must:

• Post at least two job advertisements for the position.
• Ensure the advertisements are on nationally available recruitment websites such as Seek, Jora, and Indeed.
• Keep these advertisements open for at least 28 calendar days.

You need to demonstrate to the DHA that the advertised position could not be filled by local applicants. There are various methods to prove this, depending on the role and the business.

Step 3: ask for help

Migrate Pro Law collaborates closely with businesses in Australia and globally on employer-sponsored visa subclasses.

We can assess the LMT requirements and determine if you or your nominated employee qualify for an exemption.

To ensure the best course of action, we recommend scheduling a consultation with our immigration lawyers, who can discuss the process and requirements tailored to your specific business needs.

To contact us, or book a consultation feel free to make an appointment here: www.migrateprolaw.com.au or you can email us: [email protected]