October 27 2023:
Employer Alert: Policy change to Labour Market Testing Requirements
On 27 October, the Department of Home Affairs advised a change in its policy interpretation of acceptable Labour Market Testing evidence.
Employers who Sponsor should take note, because failure to meet LMT will result in Nomination Refusal and subsequent Visa Refusal. Employers would not be eligible for refunds of their SAF levy should a Nomination Application be refused for failing to meet LMT.
This is yet another example of how the application of laws, vary according to changes in policy. In other words, this is not a law change – rather it is a change to the Department’s interpretation of the labour market testing legislation. Whether their interpretation is or is not correct, Employers are advised to take note of this change, and adjust their LMT advertising accordingly.
The Change
To date, the Department has been accepting back -to-back advertisements or separate advertisements within the 4-month period, as acceptable evidence of LMT requirements.
The Department has now released a policy that it will no longer do so:
The Department can confirm that the advertising and acceptance of applications or expressions of interest over two or more non-consecutive periods does not satisfy the labour market testing condition, even if the total period in which applications or expressions of interest were accepted is greater than four weeks in duration.
The Department has adopted this position because it considers that the use of the term ‘duration’ in both subsection 140GBA(6AB) and subsection 8(5) of LIN 18/036 demonstrates an intention for the labour market testing to occur over a continuing period of time, rather than separate non-consecutive periods. Further, the temporal language in subsection 8(5) indicates that the duration of the labour market testing is fixed from the date of the publication of the first advertisement and continues to run until the conclusion of the four week period.
Some practical examples of what does and does not satisfy the requirement under subsection 8(5) of LIN 18/036 are as follows:
Two overlapping advertisements
For example, two advertisements are run on the same platform: one ad runs from 2 May 2023 to 24 May 2023 (21 days); and the second ad runs from 23 May 2023 to 14 June 2023 (21 days).
This would comply with the LMT requirement because it is possible to ensure, through the use of overlapping advertisements, that applications or expressions of interest can be accepted (and, therefore, labour market testing occurs) for a continuing period of at least four weeks from when an advertisement for the position is first published in accordance with subsection 8(5) of LIN 18/036.
Two back-to-back advertisements
For example, two advertisements are run, the first from 2 May 2023 to 24 May 2023 (21 days) and the second from 25 May 2023 to 5 June 2023 (12 days). This will not comply with subsection 8(5) as the LMT is not being carried out over a continuing period of time.
Further information on Labour Market Testing can be found on the Department’s website at Labour market testing (homeaffairs.gov.au).
If you require assistance with your Nomination Application, labour market testing, or work visa application, please feel free to Contact us.
