What is Labour Market Testing?

The ABC ran a story (20 Aug 2022) about a Melbourne light pole manufacturer whose employee’s visa had been refused because the employer had not met the labour market testing requirements. This prompts the question, what are the labour market testing requirements?

The Principle

Generally, we expect governments to act in the best interests of their citizens. In the migration space, this manifests itself in the basic principle that we do not import workers for jobs that Australian workers can do. Our skill-based visas are targeted at overseas workers for occupations with high vacancy rates.

During the COVID-19 pandemic, with many workers having their employment disrupted, the Australian Government enhanced the labour market testing requirements “to ensure that Australian workers are prioritised for job opportunities in Australia”.

With some exceptions, predominantly related to international trade obligations, an employer seeking to sponsor a worker on specified visas must prove to the Department of Home Affairs that no Australian worker is willing and able to take the position. This is done by testing the labour market – that is, advertising the position to prove that no suitably qualified and experienced Australian worker can be found.

Advertising

The Regulations give very specific details as to the method and timing of the advertising. For example, the position needs to have been advertised on the Australian Government’s own Workforce Australia website. Additionally, at least two other advertisements need to run through mediums with a national reach. The advertisements need to run for at least four weeks. On conclusion, the sponsor’s nomination needs to be lodged within four months.

The company in the ABC story appears to have conducted labour market testing but did not comply with the required timelines in the legislation. Under Department policy, the delegate assessing the application has no room to waive the requirement that the labour market testing was conducted within the last four months and the application must be refused.

Consequences

Having done the hard work of finding a suitable worker to fill a critical position, it may all come undone due to a seemingly minor technicality. The visa application fee is forfeited, the skills assessment, health and language tests will likely expire and, in this case, the worker may be required to leave Australia.

Get Help

It is important you get advice when sponsoring an international worker. If you require assistance with your visa sponsorship or nomination, feel free to get in touch with us at YourLawyer (+61 3 9870 8777).