Certain visas, specifically employer sponsored Temporary Skill Shortage Visa (Subclass 482 visa) requires testing the local labour market in Australia before nominating an overseas worker for a skilled position. In other words, you must demonstrate to the Department that no suitable worker is present in Australia for a particular skill for which you are nominating an overseas skilled worker. Generally, labour market testing (LMT) requires the employer (the approved sponsor) to advertise the position for an eligible occupation provided under the TSS 482 visa occupation list and provide evidence of the same at the stage of nomination application.
This blog explores one of the LMTexemptions where LMT is not required if it conflicts with Australia’s international trade obligations as per Section 140GBA of the Migration Act 1958 (Cth) [“the Act”].Section 140GBA of the Act provides:
“Labour market testing—condition
Scope
(1) This section applies to a nomination by a person, under section 140GB, if:
(a) the person is, or has applied to be, in a class of approved work sponsors prescribed by the regulations; and
(b) the person nominates:
(i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
(ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and
(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.”
In this regard, the Migration (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020 dated 28 January 2020 provides a list of 14 agreements thatdetermine international trade obligations of Australia regarding labour market testing.
Some instances where LMT exemptions are applicable are:
- Nominee is a citizen or national of China, Japan, Mexico, Thailand or Vietnam;
- Nominee is a citizen or national or permanent resident of Canada, Chile, South Korea, New Zealand or Singapore;
- Nominee is a current employee of the associated entity of the sponsor’s business where the associated entity is situated in Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam (the ASEAN countries), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand.
Further, it may interest you to know that the Regional Trade Agreements Division of the Department of Foreign Affairs and Trade has recently announced the commencement of the Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA) from05 July 2020 which may impact and alter certain visa requirements regarding LMT for Indonesians and make immigrating to Australia easier for you.
If you are seeking help regarding LMT or want to speak to experienced Registered Migration Agents about visa 482, call us on +61 2 4626 1002. Alternatively, you can Contact Us and one of our TSS visa agent will get back to you shortly.
