Enhanced labour market testing (LMT) requirements were recently announced to ensure Australian workers are prioritised for job opportunities during the COVID-19 pandemic. Here’s what employers need to know moving forward.
Ads must have been active (accepting applications) for at least 28 days AND this 28-day period must be within 4 months from date of lodgement.
If there is any redundancy of a similar position within 4 months, the LMT must be undertaken after the redundancy.
Ads must be in English and include the following information:
the title and duties of the position;
the skills or experience required for the position;
the name of the approved sponsor;
either the annual base salary for the position or a small salary range (a salary does not need to be included if annual earnings are AUD96,400 or above)
All nominations lodged on or after 1 October 2020 will need to comply with the new requirements.
International Trade Obligation (ITO) exemptions apply for Subclasses 457 and 482 only.
What about the Employer Nomination Scheme (ENS 186 visa) and Regional Sponsored Migration Scheme (RSMS 187 visa)?
Due to COVID-19’s economic impact, nominations for permanent employer sponsored visas Subclasses 186 and 187 will also be expected to demonstrate that the position has been advertised on jobactive as part of fulfilling the ‘genuine need’ criterion.
While no legislative instrument directly mandates this requirement for Subclasses 186 and 187 (unlike for Subclasses 457, 482 and 494), employers sponsoring employees under the ENS and RSMS will be expected to comply as part of the new policy shift.
186 and 187 nominations will only need to advertise on jobactive ie. place one ad on jobactive.
We await further details on the precise job ad requirements for 186 and 187 nominations, but it is safe to assume that the same LMT requirements as Subclass 457, 482 and 494 (listed above) will apply.
It is likely only nominations lodged on or after 1 October 2020 will need to comply.
In addition, the Department will be further scrutinising 186 and 187 nominations in relation to Australian workers employed by the business in similar occupations, including:
retrenchments in the previous 12 months
reduction of hours worked during the previous 12 months
reduction in pay and conditions within the previous 12 months
employment of a temporary visa holder on conditions less favourable than Australians
recruitment of temporary visa holders beyond the ordinary scope of the business.
The bottom line: Employers who fail to undertake enhanced LMT risk having their nomination application refused. We will update our clients as soon as further guidelines are issued.
Key takeaways and practical tips for employers
Employers with ongoing nominations under the impacted visa subclasses need to plan ahead for 1 October 2020
For employers sponsoring workers on a 457, 482 or 494 visa:
Ensure you have complied with the new mandated LMT requirement (ie. have placed at least 3 ads, including one on jobactive) before lodging a nomination
For employers sponsoring workers on a 186 or 187 visa:
Ensure you have placed an ad on jobactive to demonstrate that the position you are hiring for fulfills the ‘genuine need’ criterion.
For employers generally:
If a nominated employee’s visa is due to expire before 1 October 2020, employers should lodge the related nomination immediately.
It would be best to place a jobactive ad to demonstrate that the expectation for enhanced LMT has been met as much as possible, despite the fact that the ad will not have been run for the required 28 days.
Employers risk serious financial loss by NOT complying with the new jobactive LMT requirement at the time of application
Total nomination and visa lodgement fees range from $1,500 to $15,000 depending on the individual business and background of the visa applicants.
Failing to comply with the new enhanced LMT requirements could result in refusal of the nomination.
No refunds are given for refused nominations or visa applications.
General tips for advertising on jobactive
Employers must have an active ABN to register.
Note: Overseas Business Sponsors (OBS) sponsoring workers on the Temporary Skill Shortage (Subclass 482) visa will need to authorise a suitable Australian company to place ads for them.
It can take several days for job ads to be posted on the jobactive site. Employers should take this into account when placing ads to ensure they meet the 28-day requirement.
Ads on JobActive are for set to run 14 days by default; employers should select the correct box to extend the period to the minimum 28-day requirement.
Note: The above is general information only. Seek the advice of a qualified migration agent or lawyer to discuss how specific requirements apply to your own circumstances. Abacus Visa is here to assist.
DISCLAIMER: No material on this website, including but not limited to documents, articles, general comments, responses and other communications should be interpreted as relevant or accurate legal advice for any individual or specific situation. The information is of a general nature and cannot substitute for professional legal advice. Such advice is only provided by our firm following the acceptance by a client of our written agreement, and the payment of the required fees.