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Immigration Matters: Labour Market Testing Requirements for permanent employer sponsored visas

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Temporary Work and Provisional Visas - new Labour Market Testing requirements

Last week we advised on the additional requirements for sponsoring overseas workers on the subclass 457/482 or 494 visa (read full alert here).

Given the high levels of unemployment at present in Australia, the Australian Government has now introduced an additional advertising requirement for applications being submitted under the above visa subclasses.

To recap, currently sponsors can advertise on two national advertising platforms.

As of 30 September 2020 businesses will be required to also evidence that they have advertised their vacancies on the Jobactive website for 28 days, this is in addition to the current advertising requirements.

This measure, we understand, is to ensure that appropriately skilled Australian citizens and permanent residents are given work opportunities before overseas workers when a business nominates a position within their organisation.

The new requirements for advertising are:

  • must be advertised on the Jobactive website, AND
  • must be advertised with at least two advertisements in two other advertising websites.

This applies to nominations made after 30 September 2020.

This means that if you are considering nominating an individual in the coming weeks and you know the nomination is going to be lodged on or after the 30th September 2020, you need to ensure you have your jobactive advert placed now to allow for the 28 period to run, prior to lodgement of the nomination application.

Permanent Employer Sponsored Visas

In line with the above requirements the Australian Government also requires that positions will be advertised on Jobactive before seeking to nominate an overseas worker for a permanent employer sponsored visa such as the subclass 186 or 187.

Given the economic impacts that COVID-19 has had on the unemployment rate in Australia, the Australian Government wants to ensure that employers are prioritising Australian workers first.

Businesses will be required to demonstrate that there is a genuine need for an overseas worker to fill that position including where the business has an employee already in the position as the holder of a subclass 457 or 482 visa.

This requirement has not yet been legislated for the Subclass 186 &187 visa programs but has been confirmed as an expectation and should be done as matter of course to help demonstrate that the employer has a genuine need to employ the nominated visa holder in the position.

ENS & RSMS (Subclass 186 & 187 nominations) Nomination Applications will be assessed with regard to:

  • retrenchments in the previous 12 months within your business
  • reduction of hours worked during the previous 12 months
  • reduction in pay and conditions within the previous 12 months
  • employment of a temporary visa holder on conditions less favourable than Australians
  • recruitment of temporary visa holders beyond the ordinary scope of the business.

Takeaway

These changes come at a time where unemployment is at an all time high and have been put in place to ensure the ongoing integrity of these visa programs and to ensure that businesses are seeking first and foremost to fill these vacancies with qualified and skilled Australian workers wherever possible.

When now submitting your permanent visa applications for your employees, we need to ensure that the above is addressed and your business can demonstrate the genuine need for the position.

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If you have any concerns around these changes or need assistance with ensuring your advertising processes are able to meet these requirements please reach out to your usual Mapien Migration team contact, or otherwise contact us here!

Written by
Sarah Pettit
Sarah has been providing Australian and overseas businesses with immigration advice for over 14 years. With extensive experience and specialisation in corporate migration, Sarah has worked with some of Australia's largest corporations across multiple industries including Oil & Gas and Resources, Finance, Information Technology, Health, Banking and Education.