“Err on the side of overlapping?”: Navigating Labour Market Testing

Labour Market Testing (LMT) is a critical requirement for certain visa nominations (for example, Subclass 482 (Temporary Skill Shortage) visa), unless specific exemptions or international trade obligations apply.

Section 140GBA of the Migration Act 1958 (Cth) (Act) outlines the LMT condition.

This condition becomes applicable unless it contradicts any of Australia's international trade obligations or if exemptions under sections 140GBB (related to major disasters in Australia) or 140GBC (pertaining to certain skill and occupational exemptions) of the Act are in play.

What is Labour Market Testing (LMT)?

LMT essentially involves advertising a job position within Australia.

For detailed legislative information on LMT, refer to the Migration (LIN 18/036: Period, Manner, and Evidence of Labour Market Testing) Instrument 2018.

For most nominations, the position should have been advertised for at least four weeks within the four months immediately prior to the nomination application.

If an Australian worker has been made redundant within four months before the nomination, advertising must have occurred since the date of redundancy, and this information must be provided with the nomination.

The advertising of the nominated position must meet specific criteria:

• The advertisement must be in Australia, in English, and include the job title or description, skills or experience required, the sponsor's name, and the salary (if it's below AUD96,400).

• At least two advertisements should be published on prominent or professional recruitment websites, national print media, national radio, or the sponsor's accredited website. Advertisements are expected to run for at least four weeks, and applications must be accepted for at least four weeks. Note: Job vacancies restricted to LinkedIn profile members only are not acceptable for LMT purposes.

As of October 1, 2020, new measures have been introduced. In addition to the previous requirements, the nominated position must be advertised on the Government's Workforce Australia website. This advertisement should include all the information required in the other two advertisements. Just like the previous rules, Workforce Australia advertisements are expected to run for at least four weeks, and applications must be accepted for at least four weeks.

Recent Update on LMT

The Skilled Visas Program Branch, Department of Home Affairs, has recently clarified an important point: advertising and accepting applications or expressions of interest over two or more non-consecutive periods will not satisfy the LMT condition, even if the total duration exceeds four weeks.

The Department's rationale is based on their interpretation of the term 'duration' in subsection 140GBA(6AB) and subsection 8(5) of LIN 18/036. They emphasise the need for a continuous period of LMT.

For a clearer perspective, let's consider practical examples:

1. Two Overlapping Advertisements

If two advertisements are run on the same platform, ensuring a continuous period of at least four weeks of LMT, it complies with the LMT requirement.

As an illustration, let's consider a scenario where two advertisements are simultaneously published on the same platform. The first ad is active from May 2, 2023, to May 24, 2023, spanning 21 days, and the second ad runs from May 23, 2023, to June 14, 2023, also covering 21 days.

This scenario aligns with the LMT requirement because by strategically using overlapping advertisements, it becomes feasible to ensure the acceptance of applications or expressions of interest. Consequently, LMT unfolds continuously for a period of at least four weeks from the initial publication of the job position in accordance with subsection 8(5) of LIN 18/036.

2. Two Back-to-Back Advertisements

If two advertisements are run consecutively without achieving a continuous four-week period, it does not meet the LMT requirement.

To illustrate with another case, let's imagine two advertisements in which the first one runs from May 2, 2023, to May 24, 2023, lasting 21 days, and the second is active from May 25, 2023, to June 5, 2023, covering a span of 12 days.

In this situation, the LMT does not meet the requirements outlined in subsection 8(5) because LMT is not considered to be conducted continuously over time.

Final thoughts

To increase your chances of a successful application, it appears that the focus must be on the continuity of the process, not just the duration of the LMT.

As part of our comprehensive immigration assistance service at Visamigo Lawyers, we diligently review employers' the LMT evidence to ensure full compliance with relevant policies and regulations before submitting nominations to the Department of Home Affairs.

We're here to assist you every step of the way, making your immigration journey as smooth as possible. Contact our team today: ask@visamigo.com.au

DISCLAIMER: Important notice for all our social media followers as well as website readers. Content shared here by Visamigo Lawyers and its affiliates is not to be considered as immigration or legal advice. It's intended for informational purposes only and should not be used as a substitute for professional guidance. This material offers general insights (accurate at the time of posting, subject to updates) and is not exhaustive. Prior to any application, it's recommended you consult an Australian Lawyer for personalised advice. Your journey matters, so ensure you're properly informed.