The MIA has made available the DIBP’s FAQ regarding the Labour Market Testing requirements.
LMT in the subclass 457 visa programme frequently asked questions
This is not yet on the DIPB website, but can be seen here.
From 23 November 2013 employers seeking to access the subclass 457 visa programme may need to provide evidence of having conducted labour market testing prior to lodging a nomination for an overseas skilled worker.
Q. What is labour market testing and why is it being introduced to the subclass 457 visa programme?
Labour market testing means that employers seeking to access the subclass 457 visa programme to employ an overseas worker to fill a nominated vacancy in their business must first test the local labour market to ensure that there is no suitably qualified and experienced Australian citizen or permanent resident or ‘eligible temporary visa holder’ readily available to fill that position.
It is being introduced to ensure that the subclass 457 visa programme is only used to meet genuine skill shortages and cannot be used by businesses that do not make genuine efforts to provide employment opportunities to Australians.
Labour market testing will not be required where it would be inconsistent with Australia’s international trade obligations. In addition, some occupations are exempted by legislative instrument from labour market testing.
Q. What is the definition of ‘eligible temporary visa holder’? A person is an eligible temporary visa holder in relation to a nomination if, at the time the nomination is made: • the person is the holder of a Working Holiday Maker (subclass 417) visa or a Work and Holiday (subclass 462) visa, and • the person is employed in the agricultural sector by the nominating employer (or an associated entity of that business); and • the temporary visa does not prohibit the person from performing that employment.
Q. Which stage of the subclass 457 visa application process does labour market testing apply to? If required, standard business sponsors must provide evidence of having tested the local labour market when lodging their nomination.
Q. Are accredited sponsors exempt from labour market testing on the basis of their accreditation status? No.
Labour market testing and Australia’s international trade obligations
Australia has obligations under several international trade agreements that relate to the mobility of skilled labour. Labour market testing does not need to occur where it would conflict with these obligations.
Q. How can I find out if Australia’s international trade agreements apply to my nomination? Further information is available on the department’s website at: http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4
Exemptions from labour market testing You may be exempt from needing to provide evidence of having tested the local labour market on the basis of the skill level of the nominated occupation. Exemptions may also apply in the event of a major disaster.
Q. How do I tell whether I will be required to provide evidence of labour market testing with my nomination?
A list of occupations that require labour market testing is available on the department’s website at http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4
Q. What is the ‘major disaster’ exemption? An exemption from labour market testing may be provided if a major disaster has occurred in Australia and additional labour is needed to help disaster relief or recovery. This exemption can only be granted, in writing, by the Minister for Immigration and Border Protection.
Timeframe for conducting labour market testing
Q. Is there a mandatory period for conducting labour market testing? No.
Q. What does the 12 month period refer to? Does it mean that I have to test the labour market for 12 months prior to lodging a nomination?
No. It means that you have to have conducted labour market testing for the nominated position at any time within the preceding 12 months prior to lodging the nomination. There is no specific time requirement for conducting labour market testing.
Providing evidence of labour market testing
Q. What information do I need to provide as evidence of having conducted labour market testing? 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? 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? 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? No.
Q. Is advertising on my company’s own website an acceptable form of labour market testing? Yes.
Q. My company uses an external recruitment agency. Is this an acceptable form of labour market testing? Yes, however you are still required to provide information about the recruitment efforts undertaken on your behalf and the outcome of those activities.
Q. Do I have to provide additional evidence of forms of labour market testing other than advertising, such as labour market research or attendance at jobs expos? You must provide evidence that you have tested the local labour market and that no suitable Australian citizens or permanent residents were found. It is not mandatory to provide additional evidence if you have met these threshold requirements.
Labour market testing following retrenchments or redundancies
Q. Does the requirement to labour market test following retrenchment or redundancies apply to all positions in my organisation or only to the nominated occupation? This requirement only relates to the same or similar occupations to the nominated occupation. For example, if a construction company made a bricklayer redundant prior to nominating a carpenter, this would not be relevant to the nomination. However if the same company is nominating a bricklayer, labour market testing must be conducted prior to lodging the nomination and evidence provided with the nomination.
Q. Does this requirement apply to voluntary redundancies? No.
Q. Am I required to keep records of labour market testing after the visa has been approved?
It is not an immigration requirement to maintain records of labour market testing.
Q. What if I need another worker in a similar position after I’ve conducted labour market testing and completed the nomination and visa application process? Do I need to conduct labour market testing again before I can nominate additional position(s)? No, provided that you have conducted labour market testing in the 12 months prior to lodging the nomination for the additional position. However, you will be required to submit the evidence of having undertaken labour marketing testing with each nomination.