457 Visa – Labour Market Testing (LMT)

Labour market testing (LMT) in the Subclass 457 programme was introduced by the Migration Amendment (Temporary Sponsored Visas) Act 2013 which was passed by Parliament in June 2013 and commences on 23 November 2013.

Standard business sponsors are required to test the local labour market prior to lodging a nomination and, on implementation of the LMT condition, must provide information with their nomination about their attempts to recruit Australian workers and how they have determined on the basis of these attempts that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder available to fill the position.

Not all 457 Visa nomination applications require LMT, but if LMT is required, the sponsor must provide evidence that the LMT has been conducted within 12 months before lodging the application and the LMT condition is satisfied. Otherwise the nomination will be refused.

Since the LMT is a fairly new change in 457 Visa requirements, we hope this newsletter will help potential sponsors and applicants understand this new requirement.

Who are exempted from LMT?

As mentioned above, not all 457 Visa nomination applications are required to demonstrate evidence of LMT. The following exemptions are available.

1. Executive or senior manager occupations

• Australian businesses who nominate a current employee of an associated entity of their business who operates in a WTO member countries will not have to undertake LMT if the nominated occupation is one of the Executive or senior manager occupations listed here.
• Overseas businesses operating in WTO member countries and seeking to establish a business in Australia will not have to undertake LMT if the nominated occupation is listed above as an Executive or senior manager.
• For a list of WTO member countries, click here.

2. Chile, New Zealand and ASEAN countries intra-corporate transferees

• LMT is not required if the nominee is a current employee of a company that operates in Chile, New Zealand or any ASEAN countries and is being nominated by an associated entity of that business who operates in Australia.
• ASEAN countries include Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam.

3. Specialists with 2 years employment in Australia

• Persons with trade, technical or professional skills who have been nominated by either an Australian or overseas business following two years full-time employment in Australia with the same nominating employer is not required to pass the LMT if the nominee is a citizen of a WTO member country.

4. Skill and occupational exemptions

• If the nominated occupation is one of the ANZSCO Skill Level 1 or 2 occupations and the occupation is not protected, the sponsor is exempt from the LMT requirement.
• Protected occupations (mainly engineering and nursing occupations) cannot be exempted from LMT.
• For a list of the protected occupations, click here.

Evidence of LMT

As a sponsor, if your nominee’s circumstances do not match any of the above, mostly likely you are required to satisfy the LMT requirement.

You must provide evidence of having tested the Australian labour market within the 12 months prior to lodging the nomination, including information about your attempts to recruit suitably qualified and experienced Australian citizens and Australian permanent residents to the position. This evidence must be provided at the time you lodge the nomination.

1. Mandatory evidence

• Advertising – Evidence of LMT must include evidence of any advertising (paid or unpaid) or the nominated position and any similar positions. The advertising can be undertaken by an authorised third party such as a recruiting firm. Details of advertising fees and any other expenses paid for that advertising must also be provided.
• Other recruitment attempts – Other recruitment attempts such as involvement in relevant job and career expositions may also be provided including details of fees paid and details of results of such recruitment attempts.

2. Optional evidence

• Optional evidence can include labour market research, expression of support from government employment agencies or information about your participation in job and career expositions.

Note: If an Australian citizen or permanent resident has been retrenched or made redundant in your business, or an associated entity of your business, within the four months prior to lodging your nomination, you must also provide information about those redundancies or retrenchments.

You must have undertaken labour market testing after those redundancies or retrenchments, and you must provide information and evidence of that labour market testing with your nomination.