October 2021
Labour Market Testing is a legislative requirement for most Temporary Skill Shortage (subclass 482) and Skilled Employer Sponsored Regional (Provisional) (subclass 494) nomination applications (see our previous blog post on this topic HERE.
View Link: Sponsoring Skilled Workers
There is no such legislative nor regulatory requirement to have tested the local labour market in any prescribed way for the purpose of nominating skilled employees for the permanent Employer Nomination Scheme (subclass 186) or Regional Skilled Migration Scheme (subclass 187) visas.
However, the nominating business must demonstrate to the Department of Home Affairs that there is a “genuine need” for the nominee to be employed in the position.
How is advertising related to establishing a “genuine need”?
As a result of the impact of the COVID-19 coronavirus pandemic on unemployment in Australia, the Department of Home Affairs is strengthening efforts to ensure that Australian workers are prioritised for job opportunities.
Thus in assessing the “genuine need” requirements, the Department will consider whether the employer has sought to find an Australian worker for the position, such as through advertising the vacancy on the Australian Government’s Jobactive website or through other national advertisements.
What type and duration of advertising is required?
Unlike the formal, prescribed Labour Market Testing requirements for Temporary Skill Shortage (subclass 482) and Skilled Employer Sponsored Regional (Provisional) (subclass 494) nomination applications, there are no such prescribed criteria for the purpose of employer nominations for the permanent Employer Nomination Scheme (subclass 186) or Regional Skilled Migration Scheme (subclass 187) visas.
Rather, whether or not advertising has been conducted in relation to the nominated position is recorded only as a policy-based consideration as to establishing a “genuine need” for the nominee to be employed in the position.
As such, there are no prescribed duration, forum and/or content requirements in this regard, but the specific reference to the Australian Government’s Jobactive website or other national advertisements would certainly indicate that advertising completed on such forums would be viewed favourably.
Certainly any advertising undertaken should adequately demonstrate – in terms of content, duration and forum of the advertising – that the attempts by the nominating business to ascertain whether there is an available Australian worker for the nominated role were genuine.
Could our subclass 186 or subclass 187 nomination application be refused because we did not advertise for the nominated position?
In a technical sense, no.
Rather, a failure to have adequately advertised for the nominated role may contribute to the Department of Home Affairs forming the view, based upon a cumulative assessment, that there is not a “genuine need” for the nominee to be employed in the position.
To speak with an experienced, specialist immigration lawyer regarding your Australian visa application or options, please contact us on +61 3 9329 8744 or by email at info@erskinerodan.com.au
