Genuine Labour Market Testing

By 1 July 2019August 18th, 2020No Comments

Labour Market Testing requirements have been in place since 12 August 2018, and frequent sponsors are now very familiar with the requirements. Standard requirements have been detailed in previous newsletter articles, however it is important to remind sponsors of the need for their labour market testing efforts to be genuine.

For efforts to be genuine, a sponsor must be able to demonstrate that they have completed labour market testing BEFORE making an offer of employment to a foreign national. This means that the sponsor must have advertised the position for 4 weeks in accordance with the Department’s requirements in the 4 months prior to TSS application lodgement, reviewed all candidates for suitability and determined that there was no Australian suitable for the position.

The Department of Home Affairs has advised that even if labour market testing is done in accordance with standard requirements, the nomination may still be refused, if the labour market testing is deemed not to be “genuine”. Apart from offering the role to a foreign national prior to, or immediately after completion of advertising, a genuineness concern may also be raised if preparation of the nomination / visa application has commenced prior to completion of labour market testing. This may suggest an intention to disregard any suitable local applicant in favour of the foreign national.

It is important for sponsors to keep these genuineness considerations in mind when testing the market.

There continue to be exemptions to the standard labour market testing requirements. Your Ajuria Lawyers adviser will always advise you of the specifics relating to your applications.

DISCLAIMER This information is current as of 1 July 2019 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.

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Author Ron Kessels

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