For some visa types, you must show us you can’t find a suitable Australian worker. For these visas, if you nominate an overseas worker, you will need to test the local labour market. Labour market testing (LMT) generally involves advertising the position in Australia.
How and when you test the market, and what proof we require, will depend on which stream you are nominating under. And in some cases, you may have to check first to see if you are exempt or if there are alternative arrangements that can apply to you. Today we will go over these exemptions and alternatives:
- Occupation-based exemptions
Occupation-based exemptions for LMT which were previously available under the Temporary Work (Skilled) visa (subclass 457), are not available under the TSS visa (subclass 482) and the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) programs.
There are currently no instruments in place which provide any other exemptions.
- International trade obligations (ITOs)
LMT is not required where it would conflict with Australia’s ITOs, in any of the following circumstances:
- the worker you nominate is a citizen/national of China, Japan, Mexico, Thailand or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand or Singapore
- the worker you nominate is a current employee of a business that is an associated entity of your business and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand
- the worker you nominate is a current employee of an associated entity of your business and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia
- your business currently operates in a WTO member country or territory and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs
- the worker you nominate is a citizen or an eligible permanent resident* of a WTO 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.
In some cases, alternative submission requirements will also apply. For example, lets look at some possible cases scenarios and their requisite requirements.
Case: Where the occupant has to have an internationally recognised record of exceptional and outstanding achievement in a profession or in the field of sport, academia and research, or a top-talent chef.
- Your submission should explain why the specific individual nominated is the only person, or one of very few people, who could undertake the nominated position.
Case: Where there is a new nomination for an existing TSS, subclass 494 or subclass 457 visa holder solely because the annual earnings that will apply to the nominee have changed; or a change in business structure has resulted in the visa holder being no longer employed by the standard business sponsor even though they haven’t changed position.
- Your submission should explain that the position is already filled by an existing TSS, subclass 494 or subclass 457 visa holder, but give reasons why a new nomination is required (for example, due to a business restructure).
Case: Where there is an intra-corporate transfer (ICT) the transfer of an existing employee of a company operating overseas to an associated entity of that company operating in Australia.
- Your submission should explain the need for an ICT transfer and documentation outlining the transfer arrangement.
Case: Where the annual earnings will be equal to or greater than AUD250,000.
- Your submission should explain the methods of testing the local labour market. For example, how you found the overseas worker via an executive search process, which included inviting applicants from Australia.
Case: Where the nominees are within the ANZSCO Minor Group 253 – Medical Practitioners (except General Practitioner (ANZSCO 253111) and Medical Practitioners nec (ANZSCO 253999) or the ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics.
- Your submission should explain the methods of testing the local labour market. For example, how you found the overseas worker via a regular bulk recruitment exercise, which included inviting applicants from Australia.
Our Registered Migration Agents at Migration Centre of Australia have been in the migration industry for many years and have helped thousands of clients onshore and offshore. We are trained professionals in Australian Migration Law and we are trusted providers in the industry for our services. If you are thinking of employing an overseas worker, or if you want to know more about Labour Market Testing, how it works and how we can help you, contact us today on (02) 4626 1002 or send us an email at email@example.com and one of my registered migration agents will be ready to help you.