New Labour Market Testing obligations for the 457 visa

As you will now no doubt be aware, sourcing, processing and lodging new TSS Visa applications become significantly more difficult. One of the new key hurdles is satisfying the governments new Labour Market Testing (LMT) requirements.

For a nomination to be approved, the Department must be satisfied that a suitable, qualified and experienced Australian worker is not available to fill the nominated position.

Under the policy, the Department would generally be satisfied that this requirement is met provided the advertising meets all of the criteria below:

  • the nominated position has been advertised in Australia
  • the advertisement was in English and included the following information:
    • the title, or a description, of the position
    • the name of the approved sponsor or the name of the recruitment agency being used by the sponsor and
    • the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold)
  • at least two advertisements were published:
    • on a national recruitment website (for example jobactive.gov.au). Note: a general classifieds website is not an acceptable method
    • in national print media
    • on national radio or
    • if the sponsor is accredited – on the businesses’ website.

Note:

  • if the advertisement is published on a website, it is expected that the advertisement would have ‘remained live’ for at least 21 consecutive calendar days
  • if the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days
  • 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) – there is no requirement that the sponsor placed the advertisement themselves.

Under the policy, alternative evidence can be considered sufficient to demonstrate that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’, where the nominated position is a position:

  • in relation to which the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research
  • held by an existing TSS or subclass 457 visa holder for which 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.

Furthermore, the approved sponsor must not be engaged in discriminatory recruitment practices. This is known as the ‘non-discriminatory workforce test’. In addition to any analysis that the Department may take in relation to a sponsor, the Department is required to investigate any allegations which raise concerns about the composition of the sponsor’s workforce and recruitment practices. The Department takes all allegations of misconduct seriously.

Labour market testing is now applicable for all positions including chefs and cooks.

Labour Market Testing

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