What is labour market testing (LMT)?

Labour market testing (LMT) involves advertising a specific position in Australia to find a suitable Australian worker to fill that position. It is meant to ensure the sponsoring employer has adequately tested the local labour market before deciding to hire an overseas worker.

What proof employers need to provide for LMT will depend on the visa and which stream they are sponsoring the position under. See the Department of Home Affairs (DoHA) website for more details.

What changed?

The Department recently made a sudden change to their policy with regards to the period of advertising for LMT that critically impacts whether a nomination application gets approved or not.

Job ads placed 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 change is due to the government’s interpretation of the term ‘duration’ in the relevant legislative instrument (specifically, Subsections 140GBA(6AB) and 8(5) of LIN 18/036). They held that employers must show an intention to carry out LMT over a continuing period of time rather than separate non-consecutive periods. Moreover, the duration of LMT is fixed from the date of the publication of the first advertisement and continues to run until the conclusion of the four week period.

Practically, what does this mean for employers?

Some practical examples of what does and does not satisfy the requirement:

Key takeaway

We cannot stress enough how important this change is. Already, there have been reports of refusals of Subclass 482 nominations due to the failure to advertise a position continuously for four weeks.

Sponsoring employers MUST comply with this latest interpretation of LMT requirements. They should:

• Note that the common practice of placing multiple job ads over non-consecutive periods is no longer satisfactory;
• Ensure that job ads remain active throughout the entire process (at least 28 days, but 30 days provides more of a buffer). If job ads close, employers will need to post new ones, but this might not be possible if a nominated worker’s visa is due to expire soon.