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Labour Market Testing (LMT) for TSS 482 Visa

Labour Market Testing (LMT) for TSS visa

Labour market testing (LMT) involves advertising the nominated position in Australia. As the name suggests the purpose of the LMT is to show the Department of Home Affairs (DoHA) that you cannot find a suitable Australian citizen or permanent resident worker.

LMT is required for Subclass 482 Temporary Skill Shortage visa (TSS) and Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa.

The Labour market testing instrument, LIN18/036, was amended by LIN 23/072 on 8 December 2023.

You will see the removal of the requirement to advertise on Australian Government Workforce Australia website.

You will also see the amendment allowing overlapping advertisements for the 28 day period. Your clients would be wise to advertise for one period of 30 days, at least. 

The amendments might save some nominations currently under consideration, as the changes apply to applications that were not decided at the time of the commencement of LIN23/072, and to new applications made after the commencement of that instrument.

In addition to two advertisements, the sponsor must advertise the position on Government Workforce Australia website. The advertisement on Workforce Australia must be in English and must run for at least four weeks. It must include:

  • The title or description of the position
  • The skills or experience required
  • The name of the sponsor
  • The salary of the position

Essentially, it will be a requirement to advertise three times.

These three advertisements must be completed and provided to the DoHA at the time the nomination is lodged.

The purpose of strengthening the LMT is to ensure that Australian citizens and permanent residents are given the opportunities to fill the job positions.

LMT is not required if it would conflict with Australia’s international trade obligations, or where the annual earnings of the applicant will be equal to or greater than $250,000.

Period in which LMT must have been undertaken:
  • for a period of four weeks
  • no more than four months before the nomination is lodged

LMT testing will be mandatory unless international trade obligations apply.

The list of acceptable mediums in which nominated positions may be advertised can include LinkedIn’s online recruitment platform and industry specific recruitment websites that are relevant to the nominated occupation. 

Is my business eligible to sponsor under the TSS 482 visa program?

LMT requirements for

Advertising of the nominated position must meet all of the below:.

  • the advertisement is in English and:
  • the title, or a description, of the position (Note: multiple positions in one advertisement are acceptable)
  • the name of the approved sponsor or the name of the recruitment agency being used by the sponsor
  • the salary for the position-if the annual earnings for the position are lower than AUD96,400. Note: it is acceptable to publish a salary range—for example AUD90,000 to AUD110,000.
  • such that advertisements set out any skills or experience requirements that are appropriate to the position.

3 Advertisements

and we suggest two of the below:

NOT acceptable

The below platforms are not acceptable platforms and websites for Labour Market Testing:

  • Twitter,
  • Facebook,
  • Instagram,
  • Gumtree 

Note:

  • the nominated position may be advertised in the same medium (such as newspaper advertisements – on two separate occasions) or in any two different mediums simultaneously, or on two separate occasions
  • advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency) – there is no requirement that the sponsor placed the advertisement themselves.

LABOUR MARKET TESTING WHEN APPLYING FOR THESE VISAS:

Employer Sponsored Visa Subclasses: TSS visa (482), subclass 186 (ENS) and 187 (RSMS) visas.

Exemptions to LMT

Occupation-based exemptions

Occupation-based exemptions for LMT which were previously available under the Temporary Work (Skilled) visa (subclass 457), are not available under the TSS visa (subclass 482) and the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) programs.

There are currently no instruments in place which provide any other exemptions, for example:

  • for specific occupations;
  • on the basis of the skill level of group of occupations (for example, ANZSCO skill level 1 or 2); or
  • due to a major disaster.
International trade obligations (ITOs)

LMT is not required where Australia has waived this requirement under its ITOs, including in any of the following circumstances:

  • the worker you nominate is a citizen/national of China, Japan, Malaysia, Mexico, Thailand, Vietnam or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand, Singapore or the United Kingdom.
  • the worker you nominate is a current employee of a business that is an associated entity of your business, and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea, New Zealand, Samoa, Tuvalu, Kiribati, Tonga, Solomon Islands, Niue, the Cook Islands or Vanuatu.
  • the worker you nominate is a current employee of an associated entity of your business, and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs, and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia.
  • your business currently operates in a WTO member country or territory, or Tuvalu, Kiribati, Niue, or the Cook Islands, and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs.
  • the worker you nominate is a citizen or an eligible permanent resident* of a WTO 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.

Note: the above ITO exemptions do not apply for nominations lodged under a labour agreement and the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494).

*eligible permanent residents in this circumstance include permanent residents of Armenia, Canada, New Zealand or Switzerland.

For the purposes of ITOs, the following occupations are considered to be Executives or Senior Managers.

Occupation ANZSCO Code
Advertising Manager 131113
Chief Executive or Managing Director 111111
Chief Information Officer 135111
Corporate General Manager 111211
Corporate Services Manager 132111
Finance Manager 132211
Human Resource Manager 132311
Sales & Marketing Manager 131112
Supply and Distribution Manager 133611

Countries which are currently WTO members are listed on the World Trade Organization website.

For more information on ITOs, see:

Note: the China-Australia Free Trade Agreement (ChAFTA) does not cover Hong Kong, Macau or Taiwan.

The Australia-Hong Kong Free Trade Agreement

The Australia-Hong Kong Free Trade Agreement (A-HKFTA) and associated Investment Agreement (IA) entered into force on 17 January 2020 and the full schedule containing the details of Australia’s mobility commitment is available on the DFAT website (LINK)

Further information:

Alternative requirements

Alternative submission requirements apply in the following cases:

Case Requirement
Where the occupant has to have an internationally recognised record of exceptional and outstanding achievement in a profession or in the field of sport, academia and research, or a top-talent chef. Your submission should explain why the specific individual nominated is the only person, or one of very few people, who could undertake the nominated position.
Where there is a new nomination for an existing TSS, subclass 494 or subclass 457 visa holder solely because:

  • the annual earnings that will apply to the nominee have changed; or
  • a change in business structure has resulted in the visa holder being no longer employed by the standard business sponsor even though they haven’t changed position.
 Your submission should explain that the position is already filled by an existing TSS, subclass 494 or subclass 457 visa holder, but give reasons why a new nomination is required (for example, due to a business restructure).
Where there is an intra-corporate transfer (ICT) the transfer of an existing employee of a company operating overseas to an associated entity of that company operating in Australia. Your submission should explain the need for an ICT transfer and documentation outlining the transfer arrangement.
Where the annual earnings will be equal to or greater than AUD250,000. Your submission should explain the methods of testing the local labour market. For example, how you found the overseas worker via an executive search process, which included inviting applicants from Australia.
Where the nominees are within:

  • ANZSCO Minor Group 253 – Medical Practitioners (except General Practitioner (ANZSCO 253111) and Medical Practitioners nec (ANZSCO 253999)
  • ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics.
 Instead of meeting standard LMT requirements, a written submission may be made by the nominator that provides reasons why a suitably qualified and experienced Australian citizen or permanent resident, or suitably qualified and experienced eligible temporary visa holder, is not readily available to fill the nominated position.

Aust-UKFTA – Inclusion in ITO Instrument

The Labour Market Testing concessions under the Aust-UKFTA commenced on 31 May 2023 with instrument Migration (International trade obligations relating to labour market testing – Australia-United Kingdom Free Trade Agreement) Amendment Determination 2022 – LIN 22/098 – F2022L01494 which amended LIN 21/075 by adding the Aust-UKFTA to the list of ITOs in that instrument.

LIN 22/098 has not yet been compiled into LIN 21/075, although the Federal Register of Legislation now shows this instrument as ‘no longer in force’. This is because it has served the purpose of amending Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021. It continues to be listed under the ‘View series’, ‘Unincorporated amendments’ link in LIN 21/075 instrument until the Federal Register is updated.

Does the four week LMT advertising need to be consecutive?

No. This is not required. For example, the requirement will be satisfied if advertising was conducted for an initial period of two weeks, which was then paused for three weeks, and then recommenced for a further two weeks (i.e. a total of four weeks advertising campaign with a three week gap in the middle).

3rd Party advertisement:

advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency) – there is no requirement that the sponsor placed the advertisement themselves.

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