Many businesses looking to employ foreign workers in Australia will sponsor them under the subclass 482 (Temporary Skills Shortage (TSS)) visa (which has replaced the 457 visa) and the subclass 494 (Skilled Employer Sponsored Regional (Provisional) (SERS)) visa. Labour market testing is a requirement for employers who wish to sponsor a foreign worker and applies to the nomination stage of the subclass 482 and 494 nomination process. Therefore, it is crucial to ensure that your business conducts labour market testing correctly and for the stipulated length of time. Otherwise, the nomination application can be refused. This article discusses the labour market testing (LMT) requirements and how your business can satisfy the criteria. 

What is Labour Market Testing?

Labour market testing is a type of recruitment campaign the business must conduct if they wish to sponsor a foreign worker on a subclass 482 or 494 visa. The business is required to first test the Australian job market before making a job offer to a foreign national. The rationale is that you need to demonstrate the position could not be filled by a qualified Australian permanent resident or citizen, unless doing so would be inconsistent with international trade obligations. 

What are the Labour Market Testing Requirements?

You must conduct labour market testing in the correct manner and format. Failing to follow these instructions will most likely result in the nomination application being refused. For all nominations lodged after 3 September 2020, the requirements for labour market testing are:

  1. The position needs to be advertised in Australia, in English, within the four months immediately before the 482 or 494 nomination application is submitted;
  2. The position must be advertised: 
    • on the Employment Department's Jobactive website; and 
    • on at least two other advertisements on national recruitment websites, newspapers or radio.  
    • An Accredited Sponsor may also advertise on their own company's website.
  3. Job advertisements need to show the: 
    • job title;
    • position description and skills description;
    • name of the sponsor (your organisation) or the name of the recruitment agency your business is using if applicable; and 
    • salary or salary range (unless the salary is above AUD$96,400); and
  4. You must display advertisements for four weeks (at least 28 days), and accept applications during that period. 

In summary, you need to run a job advertising campaign for at least one month on Jobactive. You must also run advertisements on two other recruitment websites with national reach. Acceptable examples of recruitment websites are Seek, Jora and Indeed. Industry-specific websites are also acceptable. However, social media or general sites such as Gumtree, Facebook and Instagram are not acceptable.

Demonstrating Labour Market Testing

To satisfy the labour market testing requirements, you need to provide a copy of the three job advertisements and prove the job ads were live for a minimum of one month, at least 28 days.  You will also need to provide a recruitment activity report of the responses you receive and why the applicants were not suitable.

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When Does Labour Market Testing Not Apply?

You do not have to conduct labour market testing for a 482 nomination if an international trade obligation applies. This includes when the nominated worker is:

  • a national of China, Japan, Thailand, Chile, South Korea, New Zealand or Singapore;
  • a current employee of a company associated with your company, and that associated company is in Chile, China, Japan, Korea, New Zealand or any country part of the Association of South East Asian Nations; or
  • a citizen of a World Trade Organisation member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

This is not an exhaustive list. You should contact an immigration lawyer to determine whether a labour market testing exemption for a 482 nomination applies to your business. 

There are no equivalent exemptions for a 494 nomination, and labour market testing is mandatory.

Alternative Arrangements 

In certain circumstances, you can adopt alternative requirements. In these cases, you do not have to follow the labour market testing requirements strictly. For example, you may have alternative arrangements available if the applicant: 

  • has internationally recognised experience and is at the top of their relevant profession or field. This may include an elite athlete, a world-renowned chef or an exceptional academic or researcher;
  • is an existing employee on a 482 or 494 visa, and the only reason for you to lodge a nomination application is due to a change in salary or business structure; or
  • where the annual salary for the nominated position is above AUD$250,000.

Again, this is not an exhaustive list, so you must understand whether alternative arrangements could be appropriate by speaking to an immigration lawyer.

Key Takeaways

If you are considering sponsoring a worker on the 482 (TSS) or the 494 (SERS) visas, you will need to submit a nomination application. The nomination application must include labour market testing evidence. You must comply with the labour market testing requirements if you want approval for your nomination.

However, in some cases, for a 482 nomination, you may be exempt from labour market testing. Similarly, you may also be in a situation where alternative arrangements are suitable.