Temporary Skill Shortage visa – Labour Market Testing requirements

New Labour Market Testing (LMT) requirements apply for nomination applications for the Temporary Skill Shortage (TSS) visa lodged on or after 12 August 2018.

Sponsors must be able to show they have tested the Australian labour market to determine no suitable workers are available. The strict requirements mean that nominations lodged without this evidence will be refused with no opportunity to provide it at a later stage.

Although the timing and duration required for LMT have tightened, the good news is that alternative evidence can be provided for nominations of intra-company transferees or those earning over $250,000. The requirement of having the earnings in the advertisement has also been loosened in that it is only needed if the annual earnings are below $96,400.

Period in which LMT must have been undertaken

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

• within the four months immediately before lodging a nomination; and
• for at least four weeks.

Period in which LMT must have been undertaken

Unless alternative requirements apply (see below), advertising of the nominated position must meet all of the below:

• advertisement in Australia, in English and included the following information:
  • the title, or a description, of the position (it is acceptable to have multiple positions in one advertisement);
  • the skills or experience required for the position;
  • the name of the approved sponsor (or associated entity) or the name of the recruitment agency being used; and
  • the salary for the position – if the annual earnings for the position are lower than $96,400. It is acceptable to publish a salary range—for example $80,000 to $90,000.
• at least two advertisements must have been published:
  • on a prominent or professional recruitment website with national reach 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 LMT advertising;
  • general classifieds websites or an advertisements solely through social media notification (such as Twitter or Instagram) are not acceptable method;
  • LinkedIn’s online recruitment platform is acceptable for LMT purposes. However, 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;
  • Surprisingly – on national radio—that is, radio programs that are broadcast or syndicated nationally; or
  • on the business’ website only if the sponsor is accredited.
  • 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.

Alternative Requirements

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

• relates to an intra corporate transfer i.e., the transfer of an existing employee of a company to another branch or associated entity of that company operating in Australia;
• for which the annual earnings will be equal to or greater than $250,000;
• 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);
• in limited circumstances, it is held by an existing TSS or subclass 457 visa holder for whom a new nomination has been lodged; and
• Certain occupations in the medical field.

In these cases a written submission from the sponsor will be required.

International trade obligations (ITOs)

LMT is not required where it would conflict with Australia’s international trade obligations, in any of the following circumstances. Please contact your adviser for further details on this.

DISCLAIMER This information is current as of 13 August 2018 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.