On the 23 November 2013 the new 457 Labour Market Testing Requirements (LMT) commenced. The LMT requirements apply to the nomination stage of the 457 process.
The requirement under Legislative Instrument is that the period in which the advertising of the nominated position must have been, is within 12 months.
Exemptions to LMT:
There are exemptions to LMT based on:
· occupation level
· International Obligations.
Exemptions Based on Occupation Level:
There are exemptions for occupation that areANZSCO as Skill Level 1 or 2.
Skill Level 1 are occuptions that require an Australian Degree Level qualification or at least five years of relevant experience may substitute for the formal qualification.
Skill Level 1 occupations include:
General Managers; Farmers and Farm Mangers; Accountants; Medical practitioners; Analyst Programmer; Developer Programmer;
Skill Level 2 are occupations that require an AQF Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience including:
Customer Service Manager; Café and Restaurant Mangaer.
Major Occupations not exempted from LMT – Engineering and Nursing
While most occupations requiring the level of education stated above are exempted from LMT, if the qualification or experiences are in the field of following groups, LMT must be done prior to lodging Nomination application.
· Engineering (including shipping engineering)
Exemptions Based on International Obligations:
There are also exemptions based on Australia’s International Trade Obligations.
These are available where your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager.
The definition of ‘Executive or Senior Manager’ is given a very wide interpretation, according to the DIBP website includes:
Registered Nurse, Driller, Welder, Automotive Electrician, Motor Mechanic (General), Diesel Motor Mechanic, Motorcycle Mechanic
See the list on the DIBP website:
LMT will be necessary for Trade Level Occupations and below, if no exemptions apply:
At a practical level, this means that LMT will be necessary for trade level occupations which are ANZSCO Skill level 3 and for any occupations with ANZSCO skill levels below level 3. For example Machinery Operators and Drivers which are Skill level 4 includes the occupation of Driller, which is on the ANZSCO.
This means that unless exemptions are available through International Obligations, LMT will be necessary for a number of occupations including: Electrician (general); Plumbers; Bakers; Painters; Drillers.
What level of LMT will the DIBP accept?
Details on the LMT expected can be found on a DIBP Q and A, which included the following:
“Q. What information do I need to provide as evidence of having conducted labour market testing?
A. You must provide information about all advertising or other recruitment efforts undertaken in relation to the nominated occupation in the preceding twelve month period. You must provide information about where those advertisements/recruitment activities took place, the dates they occurred and the geographic target audience of the advertising/recruitment efforts. You must provide information about the outcome of those activities including the number of applications received, the number of applicants hired and the general reasons why the other candidates were unsuccessful.
You can use the Domestic Recruitment Summary Table to summarise this information for the purpose of providing evidence of labour market testing with your nomination. It can be downloaded from the department’s website at http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4
Q. Is advertising in social media channels such as Facebook an acceptable form of labour market testing?
A. Use of social media to advertise a vacant position(s) is acceptable. As with all other forms of advertising or recruitment efforts, you will need to provide information about the process you undertook and the results the advertising produced.
Q. Do I have conduct paid advertising to meet the labour market testing evidence requirement?
A. No. Paid advertising will not be considered more favourably than free advertising for the purpose of evidencing labour market testing.
Q. Do I have to provide details of the recruitment process such as records of interview or copies of job applications received?
Q. Is advertising on my company’s own website an acceptable form of labour market testing?
Q. My company uses an external recruitment agency. Is this an acceptable form of labour market testing?
A. Yes, however you are still required to provide information about the recruitment efforts undertaken on your behalf and the outcome of those activities.
The Department of Immigration and Border Protection has provided a Domestic Recruitment summary Template, to assist employers with the process of supplying information about the advertising process.
Redundancies and LMT
If an Australian citizen or permanent resident has been retrenched or made redundant in your business, or an associated entity of your business, within the four months prior to lodging your nomination, you must also provide information about those redundancies or retrenchments.”
What the Government has said about the LMT for 457 visas
In a press release on the 15 November 2013, Senator Michaelia Cash, the Assistant Minister for Immigration and Border Protection, gave her summary of the governments new LMT implementation.
The following is stated:
“The government announced today it will adopt a sensible approach to the implementation of new rules requiring employers to test the local labour market before seeking to employ an overseas worker on a subclass 457 visa. …
Guidelines released by the Department of Immigration and Border Protection for labour market testing recognise a broad range of recruitment activity as being an acceptable demonstration of labour market testing, and the time period in which labour market testing evidence will be valid for will be 12 months.”
Commentary by Chris Johnston, Principal Lawyer and RMA at Work Visa Lawyers:
The Labour Market Testing as announced will add an extra layer of effort for many employers, looking to nominated a position for a 457 visa.
There are a number of exemptions, which need to be examined carefully for each potential nominated position, to determine if LMT is required. Many conventional professions, are exempted through their AZNSCO skill level. However Engineering and Nursing occupations are not exempted and do required LMT. The trades will be hardest hit. But even some trade positions will be exempted, depending on where the applicant is coming from – if a World Trade Organisation company, and being sponsored by a business where there is a parent business overseas.
If LMT is required, then the requirements for advertising are relatively broad, compared to what is required for the Direct Entry RSMS 187 visa, by many Regional Certifying Bodies.
The LMT must be within 12 months of the nomination, and the ranges of types of advertising available, include any of the following, paid online or paper, through a recruitment agent, online free adverts and even adverts through a sponsors own website.
Migration Act 1958 - Determination of Specified Period in Which Labour Market Testing Must be Undertaken - IMMI 13/136 - F2013L01953
Migration Act 1958 - Specification of Occupations Exempt from Labour Market Testing - IMMI 13/137- F2013L01952
Migration Act 1958 - Legislative Instrument IMMI 13/138 [F2013L01954]