Since 2013 457 visa sponsors have been required to test the Australian labour market to ensure there is no suitable Australian citizen, permanent resident or “eligible temporary visa holder” available to fill the position. Essentially this requires employers to provide evidence of attempts to recruit Australians, including details and expenses of advertising conducted. However, there are a number of exceptions to this obligation, as outlined below.
Current exceptions to the LMT requirement
Evidence of LMT must be provided to the Department of Immigration and Border Protection (Department) unless one of the following exemptions apply:
- major disaster: the Minister may exempt a sponsor from the requirement to undertake LMT if a major disaster has occurred in Australia and the exemption is necessary or desirable in order to assist disaster relief or recovery.
- skill level and occupation: all Australia and New Zealand Standard Classification of Occupations (ANZSCO) skill level 1 and 2 occupations are currently exempt from the LMT requirement unless the occupation’s experience or qualifications are considered “protected” under the legislation. Currently, experience or qualifications in the fields of engineering and nursing are protected, and therefore LMT is required regardless of the skill level of the occupation.
- Australia’s international trade obligations: LMT is not required where it would conflict with Australia’s international trade obligations. There are a number of circumstances which fall under this exemption, including the country of origin of the visa applicant or whether the visa applicant is employed by an associated entity (of the sponsor’s business) which is located or operates in certain countries. However, even if LMT is not required because of international trade obligations, the Department still expects sponsors to provide an explanation of why LMT is not required.
Changes to LMT exemptions from March 2018
In March 2018 the 457 visa program will be replaced with the Temporary Skills Shortage visa (TSS) at which time LMT will become mandatory for all occupations, unless international trade obligations apply. Employers will therefore need to ensure they conduct LMT within the required timeframes, irrespective of the skill level of the occupation they are seeking to fill, unless the international trade obligation exemption applies.
Changes to the type of evidence of LMT the Department will accept
From 1 October 2017, the Department will no longer accept a summary table of domestic recruitment activities as evidence of LMT. Instead, employers will need to provide copies of actual advertisements placed and details of any fees paid.
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