Many businesses looking to bring foreign workers into Australia will sponsor them under the subclass 482 (Temporary Skills Shortage (TSS)) visa. The TSS visa has replaced the 457 visa. Labour market testing is a requirement for employers at the nomination stage of the TSS visa process, for all visa streams. Therefore, it’s crucial to make sure that your business conducts labour market testing correctly, and for the right length of time, or else the TSS visa nomination application may be refused. This article explains labour market testing and what your business can do to demonstrate you’re meeting the requirements.

What is Labour Market Testing?

Labour market testing is the requirement that businesses wishing to sponsor foreign workers must first test the Australian jobs market.

The rationale is that you need to first ensure you could not fill the position with a qualified Australian permanent resident or citizen (unless doing so would be inconsistent with international trade obligations).

What Does the Labour Market Testing Need to Look Like?

You must conduct labour market testing in the correct format. Incorrect formatting or timing can result in the nomination application being refused.

For all nominations lodged after 12 August 2018, the requirements for labour market testing are that you need to:

  1. advertise the position in Australia, in English, within four months immediately before the 482 nomination application is submitted;
  2. display the advertisement twice, either one after the other, or at the same time. Usually, you should display both advertisements concurrently to save time;
  3. list the:
    1. job title;
    2. position description and skills description;
    3. name of the sponsor (your organisation) or the name of the recruitment agency your business is using; and
    4. salary or salary range (unless the salary is above AUD$96,400);
  4. display the advertisement for four weeks, and applications accepted for at least four weeks; and
  5. display the advertisement in:
    1. a recruitment website with national reach such as seek.com or jobactive.govs.com. Jora and Indeed are also acceptable. This can include industry-specific websites, but cannot include jobs posted on social media or general classifieds such as Gumtree;
    2. national print media, such as a newspaper or magazine;
    3. a national radio advertisement; or
    4. if your business is an accredited sponsor, on your website.

Demonstrating Labour Market Testing

To satisfy the labour market testing requirements, you need to provide the two job advertisements and a report of the responses you receive and why the applicants were not suitable.

When Does Labour Market Testing Not Apply?

You do not have to conduct labour market testing if an international trade obligation applies, such as if the nominated worker is:

  • a national of China, Japan, Thailand, Chile, South Korea, New Zealand or Singapore;
  • a current employee of a company that is associated with your company, and that associated company is in Chile, China, Japan, Korea, New Zealand or any country part of the Association of South East Asian Nations; or
  • a citizen of a World Trade Organisation member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

This is not an exhaustive list. You should contact an immigration lawyer to be sure whether a labour market testing exemption applies to your business.

Alternative Arrangements

In certain circumstances, you can adopt alternative requirements. You do not have to strictly follow the labour market testing requirements in certain circumstances, such as if the:

  • applicant has internationally recognised experience and is at the top of their field that can’t be obtained from anyone else (such as an elite athlete or a world-renowned chef);
  • applicant is an existing employee and the only reason for you to lodge a nomination application is due to a change in salary or business structure; or
  • annual salary for the nominated position is above AUD$250,000.

Again, this is not an exhaustive list, so it is essential you understand whether alternative arrangements could be appropriate by speaking to an immigration lawyer.

Key Takeaways

If you are considering sponsoring a worker on the 482 visa (formerly the 457 visa), you will need to submit a nomination application. The application must include reference to labour market testing. It is crucial you comply with the labour market testing requirements for your application to be successful.

However, in some cases, you may have an exemption. Similarly, you may also be in a situation where alternative arrangements are suitable. To confirm whether you need to meet labour market testing requirements (and find out how you can do so), contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Blythe Dingwall

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