Labour Market Testing Exemptions and Flexibility
When sponsoring an employee on a subclass 482 visa, there is an expectation the employer conducts labour market testing in the form of job advertisements, prior to lodging their nomination application, unless an exemption applies.
Undergoing the labour market testing (‘LMT’) process can delay application lodgement, which in some cases can be a serious problem. For example, when an employee’s visa is going to expire before the labour market testing process is complete, and the employer is confident there are no citizens or permanent residents available to do the job.
Before posting job advertisements, employers should first look at whether an exemption to the requirement applies.
Free trade agreements and passports
As a result of free trade agreements and WTO obligations, employers are not required or expected to post job advertisements when the employee holds a passport from an exempt country. These countries are Brunei, China, Japan, Malaysia, Mexico, Peru, Thailand, Vietnam, Canada, Chile, South Korea, New Zealand, Singapore and the United Kingdom.
It is also common for a nomination to be exempt from LMT where the nominee is an Executive or Senior Manager and will be responsible for the operations of the Australian business.
Where an employee is a citizen of a WTO member country and has been working for the sponsor in the same position full-time for 2 years before the new nomination is lodged, LMT is not required.
Intra-Corporate Transfers
When a business has operations in multiple countries, including Australia, and needs to move staff from overseas to Australia, this is considered an ‘intra-corporate transfer’.
Intra-Corporate transfers are exempt from standard LMT requirements because the transfer is not something undermining the local workforce. The employee is already an employee of the corporate group, and the Australian branch of the business needs the skills and knowledge of that particular employee.
In such cases, a written submission on why no Australian citizens or Permanent Residents are available to fill the role is sufficient.
Select Positions
There are a range of further situations where LMT requirements can be satisfied on the basis of a written submission explaining why there are no Australian citizens or residents available to do the job. Examples include:
Athletes, academics or top-level chefs with a record of exceptional achievement
Nominations required due to restructuring of the sponsor’s business
Positions with a salary at or above $250,000.00
Some Medical Practitioners
Ambulance Officers and Paramedics.
If you think the nomination application you plan to submit may not require LMT because of an exemption listed here or the nature of the position is consistent with the theme of the exemptions referred to in this post, please contact Long Migration Law to discuss further.
