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Calling All Sponsoring Employer – New Labour Market Testing Changes

16 Sep

 

From the end of September 2020, there will be changes to Labour Market Testing (LMT) for employers nominating workers for Subclass 482 and Subclass 494 visas.
From this time, all nominated positions must be advertised for at least 28 days (in the previous four months) on the government’s Jobactive website. This is in addition to the usual requirements for LMT which are outlined below.

 

What is the aim of Labour market Testing (LMT)?

LMT enables case officers to be satisfied that no suitably qualified and experienced Australian workers are available to fill the nominated position.

LMT requirements are generally satisfied if the LMT has been conducted in the manner required, which is outlined below.

 

What is the Jobactive website?

The Jobactive website is an online space where job seekers and employers can find each other.

The new Jobactive requirements

Using the new Jobactive site is also a requirement for Australian citizens and Australian permanent residents receiving unemployment benefits.

Advertising on Jobactive will also mean that employers can be monitored for the responses/applications to their advertised positions, and if a suitably qualified Australian citizen or permanent resident applies for the job, and is rejected, the nominating employer will need strong reasons for not employing the applicant.

In addition to these immigration requirements, recipients of unemployment benefits must also subscribe to the site as part of their obligations to Centrelink. They are obliged to apply for a certain number of jobs, if they want to continue receiving payments.

 

Reasons for the changes

In the explanatory statement that accompanied the new rules, the government has stated that the amendment is in response to the COVID-19 pandemic which they say “has severely disrupted Australia’s labour market” (who’d have guessed).

 

They go on to say,

Many Australian workers have been stood down or have had their employment terminated. In response to this, the Australian Government has decided to enhance the current labour market testing conditions to ensure that Australia workers are prioritised for job opportunities in Australia.”

This measure ensures that appropriately skilled Australian citizens and permanent residents are given work opportunities before overseas worker when a business nominates a vacancy.”

 

 

What are the current LMT requirements?

Currently, the LMT requirements require the approved sponsor (i.e. the nominator) to have advertised the position. The nominated position must be advertised for at least 28 days (within the four month period) before the nomination application is lodged.

 

At least two advertisements must be published in any of the following:

  • On a recruitment website with national reach e.g. SEEK or Indeed.
  • In print media with a national reach in Australia e.g. national newspapers or magazines that are published at least monthly and marketed throughout Australia.
  • On radio with national reach in Australia, including syndicated radio programs that are broadcast nationally.
  • If the sponsor is an “accredited sponsor” – on the approved sponsor’s website.

 

From the end of September, there will be a requirement for advertising to also include placing a job ad on the Jobactive website, in addition to the above.

 

The advertisements must include the following details:

  • The title or a description of the position
  • The skills and experience required for the position
  • The name of the approved sponsor or the name of the recruitment agency being used by the sponsor, and
  • The salary for the position (if lower than $96,400).
  • It is also acceptable to advertise a salary range.

 

The nominated position may be advertised in:

The same medium on two separate occasions or two different mediums simultaneously, or on separate occasions.

+ Plus, from the end of September –  the Jobactive website.

 

There is no requirement for the sponsor to place the advertisements themselves – they can be done by an authorised third party, such as a recruitment agency.

 

What evidence of LMT needs to be provided?

A copy of all of the advertising material used to advertise the position must be provided with the nomination application, together with receipts for payment if applicable.

 

LMT is different for “select” occupations and positions.

What does this mean?

 

Select occupations/positions are those:

That require the person occupying the position to have an internationally recognised record of exceptional achievement in a profession or field such as sport, academia, research, or for a top talent chef;

That will be filled by a person who is:

  • Employed by a company operating an established business overseas; and
  • Nominated by a standard business that is an associated entity of that company operating in Australia.
  • Held by a TSS or Subclass 457 Visa holder who needs a new nomination simply because:
    • Their annual earnings have changed
    • There has been a change in business structure which has resulted in the employer lodging a new nomination application to be approved as a standard business sponsor;
  • Or the person’s annual earnings of greater than $250,000; or
  • The nominee is a ambulance officer/paramedic or a medical practitioner (not including GPs)

 

Intra-corporate transfers

Intra-corporate transfers are treated as “select positions” as well.

Where an intra-corporate transfer is necessary, LMT is satisfied where a submission is included with the application outlining why a suitably qualified and experienced Australian citizen or permanent resident is not readily available to fill the position.

This submission also needs to address why an intra-corporate transfer is necessary, and according to policy documentation outlining the transfer agreement should also be provided with the nomination application.

 

Are there any LMT exemptions?

A nomination is exempt from being accompanied by evidence of Labour Market Testing in the following situations:

The Immigration Minister may exempt a sponsor from the requirement to undertake LMT where a major disaster has occurred in Australia and a government response is required. To date, no such exemptions have been provided.

There may also be skill and occupation related LMT exemptions if prescribed by the Minister. To date no such exemptions have been specified.

An employer is also exempt from LMT where it is inconsistent with Australia’s international trade obligations, which are commitments under:

Free Trade Agreements, and
World Trade Organisation General Agreement on Trade in Services. (For a list of WTO member countries refer to the WTO website

 

NB -This area of LMT is quite complex. If you have an employee who wants to nominate you and they potentially fit into one of these categories, please contact us and we will assist you.

 

LMT Tips for employers wanting to nominate employees for a Subclass 482 or a Subclass 494 Visa.

Nothing has changed with respect to the regular LMT requirements, however having to post an additional job advertisement on Jobactive will extend the time that you require to fulfil the LMT requirements.

Firstly, the Job active website takes approximately two days currently to post the advertisement. We do anticipate though that this time may spin out given that all nominating employers now must lodge job adverts on this site.

Jobactive also may selectively decide not to publish the advert. It is also worth keeping in mind that the default position for Jobactive is 14 days, which means that any employer needing to post an advert for 28 days must remember to choose a period of advertisement for 28 days (this choice is available when posting the ad).

The Jobactive website may also decide to take down the ad for its own reasons, and they may also call the employer to verify that the ad is valid.

Once you have posted a job advertisement, vigilance will be necessary.

Given that the Jobactive website is primarily for jobseekers receiving unemployment benefits, the advertisements and the applications will be monitored by the government, meaning that claims that no one has applied for a job may be difficult to sustain if they have in fact been job applications through the Job active website.

 

Need help with LMT or any other Australian immigration issue? Please go to our consultation booking page, and book yourself a complimentary consultation with one of our experts. We look forward to talking to you.

 

AHWC - Definitely the best Migration Agent I've worked with.
AHWC – Definitely the best Migration Agent I’ve worked with.

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