Hammond Migration

When a business nominates an overseas worker, the Department of Home Affairs (DHA) will generally need to be satisfied that employers are not able to find a suitable Australian worker to execute the nominated role. This means that sponsoring businesses must first test the local labour market.

Labour market testing (LMT) involves advertising the position in Australia. The DHA requires proof of testing the market and the timeframe when it was executed.

For employers unfamiliar with sponsoring workers from overseas, they may not appreciate the strict requirements surrounding LMT. Failure to provide adequate evidence of testing the market, may result in an adverse decision.

How and when employers test the labour market will depend on which visa pathway they are nominating the skilled worker under.

The following outlines some of the common mistakes surrounding LMT:

Failure to post the advertisement correctly

Employers should meet the following requirements when advertising the nominated position:

  • the advertisement was posted in English and in Australia to include the following information:
  • the title or an overview of the position
  • the skills or experience required for the position
  • the name of the business or a contact recruitment agency
  • if the annual earning are less than AUD96,400, the salary for the position. It is possible to publish a salary range to allow for some negotiation with any job candidates
  • at least 2 advertisement posts were published in any of the below:
  • on a leading website with a wide reach (national) (that publishes advertisements fo positions throughout Australia
  • in national print media
  • on national radio with national reach
  • The job advertisements is expected to be available/have a duration of at least 4 weeks and during that time, applications from candidates must have been accepted

In addition to the above, the position must have been advertised on the Government’s Jobactive website.

There is no requirement for a sponsoring business to post the job advertisements themselves and they are able to engage the services of a recruitment agency.

Advertising on an incorrect platform

Businesses may be inclined to advertise the position to their social media followers (for example on Instagram or Facebook) but these platforms are not accepted by the DHA.

Missing deadlines for conducting LMT

For most nomination applications, the position must have been advertised for at least four weeks within the four month period immediately prior to lodging the nomination application.

It may be tempting to submit an application to sponsor an overseas worker before this timeframe, however this is likely to result in a refusal.

Failure to maintain records

When sponsoring an overseas employee, businesses must provide a full copy of the advertising material used to advertise the position. This evidence should be provided at the time of lodgement.

Details regarding the redundancy or retrenchment of Australians in the nominated position

If an Australian citizen or permanent resident worker has been made redundant or retrenched from the nominated occupation within 4 months before lodging the nomination application, the advertising must have occurred since the date of the redundancy or retrenchment.

Checking if an exemption applies to save time

Gathering and providing evidence of LMT can be time consuming. If LMT would conflict with a commitment made by Australia under an international trade agreement, an exemption may be applicable.

A non-exhaustive list of circumstances that may be relevant to this exemption include:

  • the worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
  • The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country
  • The worker you nominate is a citizen of a World Trade Organisation (WTO) member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

The above exemptions can vary and it is important to check up to date requirements before relying on the above. The above is a summary and should not be treated as a definitive statement of the law. You should seek personalised immigration advice before acting. If you want an assessment of your options to sponsor an overseas worker, please complete our employer questionnaire and one of our lawyers will contact you.

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