We were first introduced to Labor Market Testing (LMT) in the age the subclass 856 ENS visa, with the requirement later being mandated under the subclass 457 visa via the Migration Amendment (Temporary Sponsored Visas) Act 2013.
LMT is the birth child of the vexed opinions on temporary labor migration and the fear that such programs diminish job opportunities for Australians, contribute to national unemployment and exploit temporary skilled visa holders of the subclass likes of 457 and now 482.
Yet since its conception LMT has had a tumultuous ride, never really being able to hold steady ground or even a true identity – it has been imposed and removed, then reinstated in different variances and guises over many Governments with the aim to crackdown on temporary foreign workers and tighten the temporary work visa programs. Over the years, many industry groups have labelled the LMT provisions onerous, and warned they could hinder business growth.
LMT requires the employer to demonstrate a genuine effort in trying to hire from the domestic labour market. How this demonstration has sufficed in the past is distinct from what is required now and this all reflects back on the changing face and apparent evolution of LMT in light of policy and labour market concerns.
Following the introduction of the new temporary work visa program, Temporary Skills Shortage (TSS), LMT is now mandatory and today its requires much more than a job advertisement. There exists many steps and parameters to follow. One could even argue that the past face and personality of LMT was less demanding and easy. This newly resurfaced mandatory LMT seems to demand much more, including attention to detail and it brims at the forefront of an application and its success.
Further, with the policy being significantly onerous and detailed it yields a substantive effect on decision making. As such it is risky to not comply with policy as failure to comply would mean a trip to the Australian Administrative Appeals Tribunal or potentially require further delays as LMT may need to be undertaken again with strict adherence to rules.
All nomination applications are subject to LMT requirements unless an International Trade Obligation (ITO), or other specified exemption (such as Major Disaster s140GBB) applies.
The Department of Home Affairs (‘the Department’) has outlined the following as the requisites of LMT evidence:
1. LMT evidence must accompany the application and cannot be provided subsequently;
2. Evidence must indicate the LMT was undertaken within the required period before lodging the application.
LMT requirements will be met where:
A. The approved sponsor has undertaken LMT for nominated position within the required time period;
B. The nomination is accompanied by evidence of LMT;
C. The delegate is satisfied that there is no suitably qualified and experienced Australian worker or eligible temporary visa holder readily available to fill the position.
A. Required Period for LMT
- Prior to 18 June 2018
Within 12 months for before lodging application
- Proceeding 18 June 2018
Within 6 months before lodging the application
- Where any redundancies OR retrenchments of Australian workers have occurred
In the four months prior to the lodgement of the application.
B. Required Evidence for LMT
To avoid an unfavorable outcome, the Department suggests that alongside a copy of the advertisement, a receipt for the advertisement (where fees were paid) must be attached with the nomination. The following table provides an outline of the requirement for each distinct scenario related to labor advertisements.
What MUST LMT include?
- Where a similar ad was placed concurrently in multiple media forms, with the details of how widely the position has been advertised specified in the nomination form the only one copy of the advertisement is required to submit to the Department;
- A domestic recruitment summary table is no longer considered acceptable evidence under policy;
- Where an employer is required to lodge a new nomination for the same nominee for their existing visa period then sponsors are able to provide the same LMT for the position along with a statement explaining that the visa holder is remaining in the same position;
- There is no requirement that the sponsor must place the advertisement themselves;
- Where authorized, third parties may undertake advertising duties.
The Fees and any other expenses paid (or payable) for that advertising:
- Where the applicant provides details advertising expenses, delegates may consider this requirement met with no further enquiry;
- Where no evidence of advertising expenses has been provided, delegates will ascertain whether there were any fees payable prior to making a decision;
- Sponsors also have the choice to provide further information in respect to local recruitment attempts. The application will not be considered less favourable if the Sponsor chooses not to provide additional information.
C. No suitably qualified/experienced Australian worker
Per 140GBA(3)(d)(i) the sponsor must demonstrate that they have taken adequate lengths and measures to source from the local labor market. This is determined by a satisfaction of the following requirements:
- The nominated position is advertised in Australia; and
- The advertisement is in English and includes the following information:
– Title OR description of the position
– Name of the approved sponsor OR recruitment agency being used by the sponsor; and
– The annual earnings for the position
At least two advertisements must be published via;
- A national recruitment website
– Advertisements through a social media platform such as Twitter or Instagram does not suffice as a in lieu of a prominent or professional recruitment website such as jobactive.gov.au
- National print media
– Includes national newspapers or magazines that are published at least monthly and marketed throughout Australia.
- On National radio, or
– Radio with ‘national reach’ includes radio programs that are broadcast or syndicated nationally.
- If the sponsor is accredited – on the businesses’ website.
LMT TRANSITIONAL ARRANGEMENTS
When is the Transitional Period?
It is inferred from policy that the transitional period is from 18 March 2018 and 18 June 2018 or when the Migration Amendment (Skilling Australians Fund) legislation is passed.
During this transitional period the Department is applying a more flexible approach. Where it is understood that the sponsor has undertaken LMT prior to March 2018, the Department will be flexible to LMT in regard to:
- Certain type of information included in the advertisements;
- The period of individual advertisement remained live; and
- In terms of the number of advertisements that meet the specified criteria, where efforts to source local workers have been undertaken.
In other words, as long as the sponsor has entailed in a genuine effort to recruit locally and the LMT evidence meets the standards in effect pre 18 March 2018, then the LMT will generally be accepted.
It is worthy to note however that this air of flexibility is subject to decision maker discretion. But one thing is for certain – in facing the new face of LMT we must be prepared and that involves recognising really well what is under the surface.