Labour Market Testing (LMT) for TSS Visa is increasingly critical to nomination applications. Labour Market Testing (LMT) FOR TSS Visa
The purpose of Labour Market Testing (LMT) for TSS, ENS and RSMS visas is twofold.
First, and officially, it is to ensure that companies hire local resident workers first. If no suitable employee can be found locally, then sponsorship is permitted. This is the intent of the rule, but the reality of enforcement is mixed.
Second, is to apply scrutiny to companies that abuse the migration program.
In the experience of the author, the LMT rule is sometimes applied harshly, other times over looked.
Nevertheless, the majority of cases have little issue with LMT assessment if the following guides are followed.
For the employers managing their own nomination applications (where LMT is applied), it is essential that LMT is addressed.
Failure to address LMT increases the risk of application refusal. Labour Market Testing (LMT) FOR TSS Visa
There are some, limited circumstances where LMT is NOT required. These include,
- Where international trade agreements provide exemptions;
- Where existing 457 or TSS visa holders are seeking a new nomination owing to change in conditions or annual guaranteed earnings;
- Where changes to ownership or business structure necessitate a fresh nomination application.
- Where the talents, skills or experience of the applicant are of such ‘exceptional’ quality that LMT is clearly redundant, for example, high performance, elite athlete or world renowned inventor.
How Important is Labour Market Testing (LMT) for TSS and other Sponsored Visas?
LMT must be addressed in nomination applications.
Even though the Department may place little weight on LMT for some applications (strong applications), failure to address can result in application refusal. Labour Market Testing (LMT) FOR TSS Visa
Some Do's with LMT
When conducting LMT, be sure to observe the following.
Do,
- Address LMT requirement, even with a brief, signed statement;
- Ensure advertising is less than 12 months old (from date of lodging application);
- Provide minimum two examples of advertising;
- Where exemptions apply, address how you meet those exemptions (ie. international trade obligations);
- Include all relevant fields in standard job advertising, such as position, conditions, tasks, reporting chains, etc;
- Ensure advertising content is clear and concise;
- Provide English language advertising as primary LMT advertising (ethnic media is permissible, but not solely, or primarily source of LMT advertising);
- Include name of point of contact or person of authority to hire employees in the business;
- Income or income range for the position;
- Provide receipts for paid advertising;
- Provide contracts or agreement with recruitment agency;
- Do use credible job sites: eg. Seek.com.au; Jora.com.au; JobaActive.gov.au (government sponsored site that is free to use); CareerOne.com.au, etc.
Some Don'ts with LMT
Be careful to avoid unwelcome attention from a case officer by observing the following list of things NOT to do with LMT for TSS and other sponsored visas.
Do not,
- Fail to provide statement or evidence of addressing LMT;
- Use ethnic media advertising only;
- Use non-authoritative platforms such as social media (Facebook, Twitter, LinkedIn (although this can be defended), etc);
- Use vague language;
- Provide incorrect job description, task lists, employment conditions or contact details;
- forget to include name and contact details for authoritative person in the business;
- Remove advertising soon after posting (ideally maintain 2- 4 weeks duration).
Labour Market Testing (LMT) FOR TSS Visa
Times are Changing: LMT to Receive Greater Scrutiny in Future
Policy positions of the Australian government have indicated a trend towards tightening of LMT criteria.
June 2018 is a key point in time for this transition. Labour Market Testing (LMT) FOR TSS Visa
- Currency of LMT evidence is to be no more than 6 months prior to date of nomination lodgement (affecting applications made after 18 June 2018); Labour Market Testing (LMT) FOR TSS Visa
- Exemptions for occupational skill level will no longer apply;
- All nomination applications will require LMT unless international trade obligations (ITOs) apply, for example FTA with China;
- Two sources of LMT evidence (ie paid advertisements) are to be mandatory and not discretionary;
- Platforms for LMT advertising are to be credible and nationally recognised, ie JobActive.gov.au, Seek.com.au, etc;
- Nationally syndicated or distributed media, including newspapers and syndicated radio (eg 2gb.com);
- Internally advertised positions are to be accepted online for intra company transferred appointments or roles;
- Advertising in the ‘Vacancies’ or ‘Careers’ section of the sponsoring business is only to be accepted where the sponsor is accredited (that is, formally recognised by the Department as a distinguished and high volume sponsor);
- Period of time for acceptance of applications to be clearly indicated in the advertisements;
- Period of time for acceptance of applications to be 21 calendar days or longer;
- Documentation of agency relationships where outsourcing of recruitment has taken place.
ABOUT THE AUTHOR
Paul Sadler is a prominent Sydney based migration law expert and Principal Agent of Sponsor-Connect. Paul possesses wide ranging experience across a number of visa categories with specialisation in employer sponsored, business skills and complex migration. Paul is highly accomplished in such complex migration cases as waiver requests, responses to notice of intention to consider cancellation, visa cancellation revocation requests, application for release from immigration detention and PIC 4020 appeals, both at Departmental level and the Administrative Appeals Tribunal (AAT). Paul is also fluent in Mandarin and Indonesian.
MARN 1382089.