Sponsoring Skilled Workers: Labour Market Testing

September 2021

In order to sponsor skilled employees for Temporary Skill Shortage (subclass 482) and/or Skilled Employer Sponsored Regional (Provisional) (subclass 494) visas, the sponsoring business must demonstrate to the Department of Home Affairs that they have tested the local labour market. This is known as the ‘Labour Market Testing’ requirements.

The Labour Market Testing requirements apply to Temporary Skill Shortage (subclass 482) nomination applications unless requiring this advertising would be contrary to Australia’s International Trade Obligations (which will be discussed below).

While Labour Market Testing is not a legislative nor regulatory requirement for nominations for Employer Nomination Scheme (subclass 186) visas in the Temporary Residence Transition and/or Direct Entry streams, the Department will take into account any advertising for the role that the nominating business has completed in considering whether or not the position to be filled represents a ‘genuine’ skills shortage.

What is the purpose of the Labour Market Testing requirement?

A sponsoring business must demonstrate that they have tested the local labour market to ascertain whether or not there is an adequately skilled, qualified, and experienced person who is an Australian citizen, Australian permanent resident, or eligible temporary visa holder available to fill the nominated position.

The importance of the Labour Market Testing requirements has increased as a result of the COVID-19 coronavirus pandemic and the impact that this has had upon unemployment in Australia.

What kind of advertising is required?

The Labour Market Testing requirements are very particular in relation to the format and content of the advertisements, as well as where and how the role is advertised, and the length of time that the advertisements must be active and accepting applications.

Failure to adequately demonstrate that all of these requirements have been met can lead to refusal of the business’ nomination application, which can then ultimately result in the refusal (or necessary withdrawal) of the applicant’s visa application.

When must advertising have been undertaken?

Unless alternative requirements apply (see below), advertising must have been undertaken:

• within the four (4) months immediately before lodging a nomination application; or

• if within four (4) months of lodging the nomination application the sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched them from positions in the nominated occupation – since the date that these events occurred.

How many advertisements are required, and where do we have to advertise?

Unless alternative requirements apply (see below) a total of at least three (3) advertisements for the nominated position are required.

At least two (2) advertisements must be published in any of the below:

• on a prominent or professional recruitment website with national reach (for example www.seek.com.au) that publishes advertisements for positions throughout Australia;
  • Industry specific recruitment websites relevant to the occupation that are in significant use by the industry are an acceptable method of advertising.
  • A general classifieds website or an advertisement solely through social media (such as Twitter or Instagram) are not acceptable methods.
  • While LinkedIn’s online recruitment platform is acceptable for advertising purposes, job vacancies restricted to LinkedIn profile members only are not acceptable.
• in national print media—that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia;
• on national radio—that is, radio programs that are broadcast or syndicated nationally;  or
• on the business’ website if the sponsor is an accredited sponsor  (view LINK accredited sponsor )

In addition to these two advertisements, an advertisement for the nominated position must also be published on the Australian Government’s Job Active website (https://jobsearch.gov.au/).

The nominated position may be advertised in the same medium (such as newspaper advertisements – on two separate occasions) or in any two different mediums simultaneously, or on two separate occasions.

Advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency).

What must be included in the advertisements?

All three (3) advertisements must be in Australia, in English, and must include;

1. the title, or a description, of the position (multiple positions in one advertisement are acceptable);
2. the skills or experience required for the position;
3. the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
4. the salary for the position, if the annual earnings for the position are lower than AUD $96,400.00 (it is acceptable to publish a salary range).

How long must the advertisements be open?

At least four (4) weeks, with applications or expressions of interest for the advertised position having been accepted for at least four (4) weeks.

What evidence of the advertising is required?

Sponsors must provide evidence of their advertising which demonstrates that they have met the method, content and form requirements detailed above.

This generally requires that a copy of the advertising material used to advertise the position be provided, and it is important that the documentation provided demonstrates the start and end-dates that the advertisements were open.

This should include a copy of the advertisements themselves downloaded from the websites to which they were posted, for example, as well as Tax Invoices/Receipts in relation to expenditure incurred from the advertising, correspondence in relation to the advertisements, and so on.

What are the alternative requirements?

Where alternative requirements apply, a business need not necessarily conduct the full gamut of compliant Labour Market Testing detailed above, but instead can provide a written submission which explains why an Australian worker is not available to fill the position.

Alternative requirements apply where the nominated occupation/position is one that:

• requires the occupant to have an internationally recognised record of exceptional and outstanding achievement in a profession or a field (such as a sport, academia and research, or as a top-talent chef).
• is held by an existing Temporary Skill Shortage (subclass 482) or Temporary Work (Skilled) (subclass 457) visa holder for whom a new nomination has been lodged solely because:
  • the annual earnings that will apply to the nominee have changed, or
  • a change in business structure has resulted in the nominee’s employer lodging a new application to be approved as a standard business sponsor.
• relates to an intra corporate transfer – an intra-corporate transfer is the transfer of an existing employee of an overseas company to another branch or associated entity of that company operating in Australia. The submission provided in this case is expected to comment upon the need for an intra corporate transfer in the circumstances, as well as why an Australian worker is not available.
• the annual earnings will be equal to or greater than AUD $250,000.00.
• is within ANZSCO Minor Group 253 – Medical Practitioners (except General Practitioner (ANZSCO 253111) and Medical Practitioners nec (ANZSCO 253999)) or ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics.

International Trade Obligations

As noted above, the Labour Market Testing requirements need only be met where it would not be inconsistent with Australia’s International Trade Obligations.

Generally, this means that a sponsoring business need not provide evidence of undertaking the required period of compliant advertising for a nominated position where:

• the worker nominated is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore;
• the worker nominated is a current employee of a business that is an associated entity of your business and your associated entity is located in an Association of South-East Asian Nations (ASEAN) country (i.e. Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China, Japan, South Korea or New Zealand;
• the worker nominated is:
  • a current employee of an associated entity of the sponsoring business; and
  • that associated entity operates in a country that is a member of the World Trade Organisation (WTO); and
  • the nominated occupation is an Executive or Senior Manager occupation for the purposes of international trade obligations; and
  • the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia;
• the nominating business currently operates in a WTO member country or territory and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of international trade obligations; or
• the worker nominated is a citizen of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two (2) years.

These International Trade Obligation exemptions do not apply to nominations lodged in relation to a Labour Agreement and/or the Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa scheme.

View Link: Sponsor an Employee, Sponsor an Employee to work in Australia

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