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Labour market testing guidelines for sponsoring overseas workers

08 May 2018

#Immigration Law, #Workplace Relations & Safety

Rebecca Macmillan

Published by Rebecca Macmillan

Labour market testing guidelines for sponsoring overseas workers

If your business sponsors overseas workers, or may need to sponsor overseas workers in the future, you need to understand the new labour market testing requirement. 

Labour market testing is a type of application criteria which means, you must satisfy the minimum requirements before submitting the employer nomination application. Failure to satisfy these minimum requirements will cause delays and can become a problem in circumstances where your business has an urgent role to fill, or you are wanting to nominate an overseas worker with an upcoming visa expiry.  

Period in which Labour Market Testing must have been completed

Until 18 June 2018, the period in which labour market testing is required to be undertaken is 12 months immediately before the nomination is lodged. 

From 18 June 2018, the period in which labour market testing is required to be undertaken is six months immediately before the nomination is lodged. 

These periods do not apply if there have been redundancies or retrenchments for the same or similar occupations in the four months immediately before the nomination is lodged in which case, the labour market testing must have been undertaken after the date of the redundancies or retrenchments.

How long your advertisement must run

You must advertise the position for a minimum of 21 days for online advertisements, and for print advertisements, applications must be open for at least 21 days. 

Minimum advertising requirements

This is the important part.

Your job advertisement must be written in English and contain the following information:

  • the title, or a description, of the position
  • the name of the approved 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, of AUD $142,000)

You must advertise the job advertisement in at least two publications which include:

  • on a national recruitment website (e.g. jobactive.gov.au, seek) 
  • A recruitment website ‘with a national reach’ 
  • in national print media 
  • on national radio
  • if the sponsor is accredited – on the business website.

Advertising on a general classifieds website or an advertisement solely through a social media notification, such as Facebook, Twitter or Instagram will not be accepted.

Exemptions

Exemptions to the labour market testing requirement are limited to situations where an international trade obligation applies. For example, an exemption applies to an employee who is transferring from a company in Japan to work for the same company or an associated entity of that company in Australia. 

Exemptions may also be available where a new nomination application needs to be submitted because of a change of business structure or reduction in salary for the position. 

No exemption is available for repeat visas as it is expected you will test the local labour market before re-engaging a 457/Temporary Skill Shortage visa holder.

Evidence for nomination applications

You must provide the following with every nomination application that requires labour market testing:

  • a copy of the job advertisements 
  • a copy of any tax invoice or receipt for payment of the job advertisements
  • a summary of your recruitment efforts – eg. how many people applied, how many were interviewed, how many were offered a position, and main reasons applicants were unsuccessful 

We understand that when advertising job vacancies most businesses have not considered sponsoring an overseas worker until that stand out overseas worker’s application is sitting on your desk. By following the above guidelines for all job advertisements you will ensure you have no difficulty satisfying the labour market testing requirement if needed. 

Author: Rebecca Macmillan


Contacts:

Brisbane

Rachel Drew, Partner 
T: +61 7 3135 0617 
E: rachel.drew@holdingredlich.com 

Cairns

Rebecca Macmillan, Registered Migration Agent
T: 07 3135 0535
E: rebecca.macmillan@holdingredlich.com

Sydney

Natalia Arens, Registered Migration Agent 
T: +61 2 8083 0451+61 7 3135 0637 
E: natalia.arens@holdingredlich.com

Disclaimer

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Rebecca Macmillan

Published by Rebecca Macmillan

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