One of the key policy changes implemented along with the new Temporary Skill Shortage (subclass 482) (TSS) visa is a new, stricter Labour Market Testing (LMT) requirement. In this article, we set out the key requirements and the now very limited exemptions to LMT.

Exemptions

Previous exemptions based on occupation or skill level no longer apply. The only exemption available is where LMT would conflict with Australia’s international trade obligations as set out below:

• The nominee is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore;
• The nominee is a current employee of a business that is an associated entity that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, South Korea or New Zealand;
• The nominee is a current employee of an associated entity who operates in a country that is a member of the World Trade Organisation (WTO), where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations and the nominee will be responsible for the entire or a substantial part of the company’s operations in Australia;
• The Sponsor’s business operates in a WTO member country or territory and is seeking to establish a business in Australia, where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations; or
• The nominee is a citizen of a WTO member country or territory and has worked for the Sponsor in the nominated position in Australia on a full-time basis for the last two years.

Period in which LMT Must Occur

LMT must occur during a specific timeframe:

• For nominations lodged before 18 June 2018 – during the 12 month period prior to lodging the nomination; and
• For nominations lodged after 18 June 2018 – within the 6 month period prior to lodging the nomination.

However, if the sponsor or an associated entity has made any Australian worker redundant or retrenched them from positions in the nominated occupation within four months of lodging a nomination occupation, they must perform LMT since the date the redundancy/retrenchment occurred. Further information about these events will also need to be supplied to the Department of Home Affairs (Department).

Substantive requirements – no suitably qualified/experienced Australian

There are substantive requirements in terms of the how and what of LMT. Essentially, the Department must be satisfied that a suitably qualified/experienced Australian worker was not available to fill the position.

The Department has advised that it would generally be satisfied of this if the LMT meets all of the following:

• the nominated position has been advertised in Australia;
• the advertisement was in Englishand included the following information:
  • the title, or a description, of the position;
  • the name of the sponsor or the name of the recruitment agency being used by the sponsor; and
  • the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold)
• at least two advertisements were published:
  • on a national recruitment website (for example gov.au). A general classifieds website is not an acceptable method;
  • in national print media;
  • on national radio; or
  • if the sponsor is accredited– on the businesses’ website.

With the LMT provisions now applying to all occupations at all skills levels (unless an international trade obligation applies), businesses who rely on overseas skills must ensure that their HR departments are aware of these requirements and have a recruitment policy in place which reflects the new requirements.

For advice regarding skilled visas, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Certain sponsors will be eligible to apply for “accredited status.” Accredited sponsors receive priority processing for all TSS nominations and visa applications – usually these applications are processed in less than five days.

Also, applicants who are sponsored by an accredited sponsor are not required to obtain police certificates from countries other than Australia if they provide a written reference from their accredited sponsor confirming that they are of good character and have not been convicted of any criminal offences.

Set out below are the categories of sponsors who are eligible for accreditation.

Criteria for becoming an Accredited Sponsor

• Category 1 Commonwealth, state and territory government agencies:
  • Must have Australian workers comprising at least 75% of their workforce in Australia.
• Category 2 “Australian Trusted Traders” must:
  • Have Australian workers comprising at least 75% of their workforce in Australia;
  • Engage all TSS/457 visa holders as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (NES) (if applicable); and
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business.
• Category 3 Low volume usage and high percentage of Australian workers must:
  • Have Australian workers comprise at least 85% of their workforce in Australia;
  • Are not a sole trader or a partnership (some exceptions apply);
  • Have an annual turnover of at least AUD4M for the last two years (some exceptions apply);
  • Have been a standard business sponsor for at least one year (some exceptions apply);
  • Have nominations approved for at least one primary TSS or subclass 457 visa holder in the last year (some exceptions apply);
  • Have a nomination non-approval rate of less than 3% for the last year;
  • Have no adverse monitoring outcomes;
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates; and
  • Engage all TSS /457 visa holders as employees under a written contract that meets NES (if applicable).
• Category 4 High volume usage and medium percentage of Australian workers (at least 75%) must:
  • Have Australian workers comprise at least 75% of their workforce in Australia;
  • Are not a sole trader or a partnership (some exceptions apply);
  • Have an annual turnover of at least AUD4M for the last two years;
  • Have been a standard business sponsor for at least two years;
  • Have nominations approved for at least 10 TSS 457 visa holders in the last two years;
  • Have a nomination non-approval rate of less than 3% for the last two years;
  • Have no adverse monitoring outcomes;
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates; and
  • Engage all TSS and/or subclass 457 visa holders as employees under a written contract that meets NES (if applicable).

 More information about becoming an Australian Trusted Trader can be found here.

How to apply

Businesses can apply for accredited status when they apply to become a standard business sponsor or when renewing an existing sponsorship.

If the business does not meet the requirements for accredited status, the application for standard business sponsorship will still proceed and be assessed in the usual way.

For advice regarding becoming an accredited sponsor, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

 

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.