Government adopts new labour market testing guidelines for TSS visa programme

6 Apr 18

AUSTRALIA

IMPACT – HIGH

What is the change? The Australian Government has established new labour market testing guidelines for the Temporary Skill Shortage (Subclass 482) visa programme.

What does the change mean? Under the guidelines, employers will be required to advertise job openings for a least 21 consecutive days before lodging nomination applications. Nomination applications must be accompanied by evidence of a labour market test as well as information about cutbacks or redundancies of Australian workers. Exemptions may apply under international trade obligations, but will not generally be available based on the skill level of the nominated occupation.

  • Implementation timeframe: Immediate and ongoing.
  • Visas/permits affected: Temporary Skill Shortage (Subclass 482) visas.
  • Who is affected: Employers and foreign nationals applying for Temporary Skill Shortage (Subclass 482) visas.
  • Business impact: Labour market testing requirements have become more stringent and will apply to a wider pool of applicants.
  • Next steps: The guidelines may change if new legislation on a Skilling Australians Fund is passed, but sponsors are encouraged to begin following the new guidelines as soon as possible.

Background: The TSS visas replaced the Subclass 457 visas on 18 March. In its recent Skilled Visa newsletter, the Department of Home Affairs provided information about labour market testing requirements for the new visa programme.

Under the guidelines, sponsors must be able to show that a suitably qualified Australian worker is not available for the nominated position. Evidence that will show that this criteria has been met includes (1) advertising the position in Australia; (2) advertising the position in English; (3) providing adequate information about the job, the employer (or recruitment agency) and the pay; and (4) advertising the position for at least 21 days. At least two advertisements must be published on a national recruitment website, in national print media, on national radio, internally to the business (for intra-company transfers) or on the business’s website (if the sponsor is accredited). The Department stated that advertising through general classifieds sites or solely through social media will no longer be accepted methods. Additional information on what sites will no longer be sufficient for labour market testing purposes is available in this Government newsletter.

Labour marketing testing must be completed within six months of the date on which a nomination is lodged, unless the nomination is lodged before 18 June, in which case it must have been completed in the previous 12 months. Sponsors must provide copies of the advertisement and receipts for advertising fees when lodging nominations.

While sponsors are encouraged to meet the new criteria as soon as possible, transitional arrangements may be available for sponsors who conducted a labour market test before 18 March. In these cases, sponsors will not generally be required to duplicate labour market testing requirements provided they made a genuine effort to recruit Australian workers under previous guidelines.

While exemptions will not be available based on skill level, they may be available under international trade obligations. Additionally, alternative evidence of a labour market test may be accepted in cases involving intra-company transfers, a distinguished talent scenario or where a nomination is lodged because of the change of business structure.

BAL Analysis: Sponsors should be sure to update their labour market testing procedures to make sure they are in line with the new guidelines. Failure to do so may result in delays or having nominations rejected. BAL is available to assist clients in determining how to advertise positions in order to meet the new criteria and in determining whether an exemption is available or if alternative forms of evidence will be accepted.

This alert has been provided by BAL Australia. For additional information, please contact australia@balglobal.com

MARN: 0534021

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