LABOUR MARKET TESTING SUBMISSION
Labour Market Testing (LMT) has been introduced by the Department of Home Affairs to ensure the Subclass 482 Visa (Temporary Skill Shortage) TSS 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.
Migration Law requires approved Standard Business Sponsors to undertake LMT prior to an application to sponsor an expatriate employee for a Subclass 482 (Temporary Skill Shortage) Visa Application.
When LMT is to be undertaken
LMT must be undertaken within the prescribed regulatory period immediately prior to the lodgement of the associated Position Nomination Application and on the same day as the lodgement of the Position Nomination Application.
Redundancies & Retrenchments
If within the prescribed regulatory period of lodging the Position Nomination Application, the Standard Business Sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched them from positions in the nominated occupation, information about these redundancies or retrenchments must be provided.
Other requirements to be provided include but are not limited to the following:
- the nominated position must have been advertised in Australia;
- the job advertisements must be in the English language;
- the title, or a description, of the position is clearly displayed on the job advertisements;
- the name of the approved sponsor or the name of the recruitment agency being used by the sponsor is clearly displayed on the job advertisements;
- the annual earnings for the position is included in the job advertisements;
- job advertisements must have been live for the period prescribed by Migration Regulations;
- at least two of the job advertisements are published on a prominent or professional recruitment website with national reach that publishes advertisements nationwide.
Standard Business Sponsors must provide evidence of attempts to recruit suitably qualified and experienced Australians and detailed submissions as to why they are unsuitable, if applicable, (unless an international trade obligation applies). This includes evidence containing a copy of the advertisement(s) and receipt(s) for any fees paid.
Failure to satisfy LMT requirements will immediately result in the refusal of the Position Nomination Application and the associated Subclass 482 (Temporary Skill Shortage) Visa Application.
Strategic Migration can assist clients in satisfying the Labour Market Testing Requirement.
AUSTRALIAN MARKET SALARY REQUIREMENT (ASMR) RESEARCH
Migration Regulations require the satisfaction of the following ASMR.
- whether there is an Australian citizen and / or permanent resident employee;
- employed in the same workplace as the nominee; and
- at the same location as the nominee; and
- performing equivalent work to the nominee;
If there is an Australian citizen and / or permanent resident employee performing equivalent work to the nominee at the nominee’s workplace, then the AMSR will be set at the guaranteed earnings of the Australian citizen and / or permanent resident employee.
- The Australian citizen and / or permanent resident employee’s guaranteed annual earnings (excluding superannuation) must not exceed the nominee’s guaranteed annual earnings (excluding superannuation);
If there is no Australian citizen and / or permanent resident employee performing equivalent work to the nominee at the nominee’s workplace, then minimum guaranteed annual earnings or Market Salary requirement will be determined by external Market Salary research for the nominee’s nominated occupation.
- Market Salary research for the visa applicant’s nominated occupation usually constitutes job vacancy advertisements, job remuneration surveys, awards etc.
The annual base salary details must be above the Temporary Skilled Migration Income Threshold.
A letter from the nominating employer providing the requisite documentation and explaining how the AMSR is met is required.
The AMSR Submission needs to be extensive and detailed to ensure the success of a Position Nomination Application.
Factors resulting in a failure to satisfy the AMSR research may include insufficient market salary research and inadequate explanation of the market salary evidence.
Failure to satisfy the AMSR research will result in refusal of both the Position Nomination and the Subclass 482 (Temporary Skill Shortage) Visa Applications.
Strategic Migration can assist clients in satisfying the ASMR.
GENUINE POSITION SUBMISSION
Migration Regulations require the nominating employer to provide documentary evidence that:
- supports and verifies that the nominated position exists, and
- the nominated position is what it purports to be;
The Department of Home Affairs indicates that the following evidence may be provided:
- a duty statement that includes the responsibilities of the nominated position;
- a structure chart for the business including full names of current employees and details of any visa held, which indicates how the position fits into the business activities;
- a brief description about the nature of the business;
- proof that the position existed in the business prior to lodgement of the nomination or if the position is newly created, whether there are any related plans for the expansion of the business and/or information about who previously performed the tasks of the position; and
- evidence that the position has been filled through a transparent recruitment process (e.g. explanation of how many candidates were interviewed & why they were not suitable).
The nominating employer can provide additional supporting documentation to explain the following scenarios, where relevant:
- the nominee might be undertaking a broader range of duties - additional evidence should be provided to demonstrate that the position is at the appropriate skill level and only limited or ad hoc tasks will be spent doing other tasks (particularly if these are tasks that could be performed by a non-skilled employee);
- the business is hiring an employee in a position that does not seem to fit within the scope of their business (for example, hiring an accountant for an automotive workshop or hiring a human resources manager for a restaurant) – additional evidence should be provided to explain why this position is consistent with the nature of the business;
- the size of the business does not appear to support such a position (for example, the turn-over does not appear to be able to support the hiring of any additional employees) – additional evidence should be provided to show the position fits within the business context.
Genuine Position Letter
A letter from the nominating employer providing the requisite documentation and information is necessary to demonstrate how the Genuine Position Requirement is met.
The Genuine Position submission needs to be extensive and detailed to ensure the success of a Position Nomination Application.
Some of the factors resulting in a failure to satisfy the Genuine Position requirement can include:
- that the nominated occupation does not fit within the scope and scale of the business e.g. the business is too small for the need or relevance of nominated occupation;
- the recruitment process for the visa applicant is not deemed appropriate;
Failure to satisfy the Department of Home Affairs Decision Maker that the position is genuine will result in refusal of both the Position Nomination and the Subclass 482 Visa Applications.
Strategic Migration can assist clients in satisfying the Genuine Position requirement.
GENUINE TEMPORARY ENTRANT SUBMISSION
Applicants for the Subclass 482 (Temporary Skill Shortage) Visa are required by Migration Regulations and Department of Home Affairs Policy Guidelines to be a “genuine temporary entrant” demonstrating a genuine intention to reside in Australia only as a temporary resident.
The Genuine Temporary Entrant Requirement can usually be satisfied where:
- an international trade obligation (ITO) applies under policy; and
- the primary applicant’s intended duration of stay is within the period permitted under ITO;
- the visa applicant has not held more than two Subclass 482 Visas in the short-term stream during the last five years;
- has not been in Australia for four years already (regardless of visa type);
Genuine Temporary Entrant Requirement Submission Letter
A submission letter is required addressing the following requirements, including but limited to:
- the applicant’s circumstances;
- the applicant’s immigration history; and
- the visa applicant has substantially complied with the conditions on any previous visas; or
- the applicant’s periods of stay in Australia have been intermittent; and
- the applicant has not established ongoing residence in Australia.
Failure to satisfy the Genuine Temporary Entrant Requirement will result in the refusal of the Subclass 482 (Temporary Skill Shortage) Visa Application.
Strategic Migration can assist clients in satisfying the Genuine Temporary Entrant requirement.
TWO YEAR EMPLOYMENT EXPERIENCE SUBMISSION
Subclass 482 (Temporary Skill Shortage) Visa Applicants are required to demonstrate they possess at least 2 years of equivalent post-qualification full-time employment experience that is highly relevant to the nominated occupation.
This is usually evidenced via provision of the following:
- References from previous employers;
- Curriculum vitae (CV) or resumé, covering at least the last five years.
Two Year Employment Submission Letter
In addition to a Submission Letter addressing the abovementioned evidence, further documentation and evidence may be required and / or requested from the Department of Home Affairs depending on the particular circumstances of the visa applicant on a case by case basis.
Failure to satisfy the Two-Year Employment Requirement will result in the refusal of the Subclass 482 (Temporary Skill Shortage) Visa Application.
Strategic Migration can assist clients in satisfying the Two-Year Employment Experience requirement.
OCCUPATIONAL CAVEATS SUBMISSION
Migration Regulations impose certain restrictions and limitations on certain nominated occupations. The Department of Home Affairs calls these occupational restrictions and limitations, “caveats”.
These caveats include but are not limited to the following restrictions:
- Minimum salary for the position
- Size of the business and the number of employees
- Restrictions on the type of activities involved in the position
- Restrictions on the activities undertaken by the business
Occupational Caveats Submission Letter
A submission letter is necessary to provide documentary evidence of satisfaction of each of the caveats applicable to the nominated occupation.
Both sponsoring employers and the visa applicants must satisfy all relevant caveats that are imposed on the nominated occupation.
Failure to satisfy the Occupational Caveats Requirement will result in the refusal of both the Position Nomination Application and Subclass 482 (Temporary Skill Shortage) Visa Application.
Strategic Migration can assist clients in satisfying the Occupational Caveats requirement.
INDEPENDENT INDUSTRY EXPERT ANALYSIS REPORTS
For submissions to address the range of criteria required by Migration Regulations as detailed above, it is highly beneficial and advantageous to provide, where appropriate, independently verifiable evidence.
Such independently verifiable evidence includes the provision of Analysis Reports by Independent Industry Experts.
There are two main types of Independent Industry Expert Analysis Reports being:
- Workplace Assessment Competency Report (WACR) to support the Subclass 482 (Temporary Skill Shortage) Visa Application; and
- Organisational Position Analysis Report (OPAR) to support the Position Nomination Application;
Strategic Migration can assist clients in arranging and reviewing independently verifiable evidence including Industry Expert Analysis Reports.
Immigration advice in this document has been sanctioned by a Registered Migration Agent and is solely for the use of the intended recipient. However, Strategic Migration advises the reader that they must not take action based solely on the contents of this document. Strategic Migration expressly disclaims any liability should the reader act without a professional engagement with Strategic Migration.