Labour Market Testing

Of all the recent changes, the requirement for mandatory Labour Market Testing (LMT) for all occupations is the one that seems to be most vexing.

This requirement was introduced by the Government to ensure that employment vacancies are first and foremost filled by Australian citizens and permanent residents.

It is not a “new” requirement, however, as LMT was part of the pre-457 visa regime in 1990s.

The general feedback from clients is that LMT is already undertaken for the vast majority of vacancies, except where the seniority or proprietary knowledge requirements of the position deem LMT inappropriate. Their concern is that current policy is very prescriptive; in particular, the requirement to identify the employer and to advertise salaries, is not in tune with established business practices.

The Department’s disallowance of advertising on social media and professional networks like LinkedIn is perplexing, given that such methods appear to be widespread and effective.

We have conveyed these concerns, on behalf of our clients, to policy makers in Canberra. They have indicated that they will afford “flexibility” during this interim period, including where the TSS applicant is an intra-company transferee and where some advertising was already being undertaken taken prior to 18 March 2018.

In the meantime, we are working closely with our clients to ensure that applications are compliant with current policy, summarised as follows:

Minimum of two advertisements published on any of the following (can be two from the same category):

• National recruitment website (e.g. jobactive.gov.au or Seek.com);
• National print media;
• National radio;
• internally to the business, if the position is an intra corporate transfer
• Sponsor’s website – ONLY if you are an accredited sponsor.

The advertisements must:

• have been published for a minimum of 21 consecutive calendar days;
• have been published within the last 12 months (from 18 June 2018, this will be changed to within the last 6 months);
• have been published in Australia;
• have been published in English;
• include the title, or a description of the position;
• include the name of the sponsor or the name of the recruitment agency being used; and
• include the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142,000).

It is important to note that there are some LMT exemptions, especially where International Trade Obligations apply, and these will always be investigated.

It is also important to be aware that legislation relating to LMT is part of the Skilling Australians Fund (SAF) legislation that is still before Parliament. We also expect the Minister for Home Affairs to sign off on a Legal Instrument relating to LMT; this could be at the same time as the SAF legislation, or indeed any time, and once requirements are law (as opposed to policy), there is less scope for decision-makers to be ‘flexible” in their assessment of LMT.

DISCLAIMER This information is current as at 2 May 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.