482 Labour Market Testing: How Employers Must Advertise Before Sponsoring a Worker

Home Affairs describes it as demonstrating that the business cannot find
a suitable Australian worker for the position.

For the standard SID Core Skills and Specialist Skills streams, LMT
generally involves advertising the position in accordance with the
requirements in the Migration Act and LIN 18/036.

Since 11 December 2023, employers no longer need to advertise the
position on Workforce Australia.

That change reduced the standard advertising requirement from three
advertisements to two.

The two advertisements can be placed in different eligible media, or in
some circumstances in the same eligible medium on separate occasions.

The advertising periods can overlap.

The current instrument allows the four-week continuous period to be
satisfied across two or more overlapping advertisements, provided the
relevant advertising requirements are met.

Employers should keep clear records showing the publication and closing
dates.

That makes nomination timing important.

Advertising that was valid when it began can become too old if the
nomination is delayed beyond the permitted period.

If an Australian citizen or permanent resident was made redundant or
retrenched from the nominated occupation during the four months before
nomination, additional timing and disclosure requirements apply. The
advertising must have occurred after the redundancy or retrenchment, and
information about it must be provided.

• a prominent or professional recruitment website with national reach
  in Australia
• an industry-specific recruitment website that is significantly used
  in the relevant industry
• national print media
• national radio
• the sponsor's own website where the sponsor has accredited status

The advertisement must be accessible in Australia and satisfy the other
LMT requirements.

The important issue is not simply the brand of website used.

The employer still needs two qualifying advertisements and must satisfy
the content, timing, duration and evidence requirements.

One advertisement on one recruitment website is therefore generally not
enough for the standard LMT requirement.

However, a vacancy restricted only to LinkedIn profile members is not
acceptable.

Employers should therefore distinguish a genuine recruitment
advertisement with the required reach from an ordinary social-media
post.

Home Affairs states that an advertisement solely through social-media
notification, such as Twitter or Instagram, is not an acceptable LMT
method.

A general classifieds website is also not an acceptable method.

The advertising needs to use the recognised recruitment, print, radio or
accredited-sponsor website channels.

• the title or a description of the position
• the skills or experience required
• the name of the approved sponsor, or the recruitment agency used by
  the sponsor
• salary where the intended annual earnings are below the applicable
  disclosure threshold

For current standard LMT, the salary must be stated where intended
annual earnings are below $96,400.

A salary range can be used.

The current rule requires the advertisement to state salary where
intended annual earnings for the nominated position are lower than
$96,400.

Where salary is required, Home Affairs permits a salary range.

Employers still need to satisfy the separate salary and Annual Market
Salary Rate requirements for the nomination regardless of whether the
advertisement was required to display the salary.

Home Affairs states that multiple positions can be included in one
advertisement.

The advertisement still needs to identify the relevant position or
positions and satisfy the required content.

Employers should make sure the evidence clearly connects the advertising
to the position being nominated.

The sponsor does not have to place every advertisement itself.

The current instrument allows advertising to be undertaken by a third
party where it is commissioned or authorised by the approved sponsor.

This can include a recruitment agency.

Where a recruitment agency is used, the advertisement can identify the
recruitment agency rather than the sponsor.

Home Affairs states that evidence of the two qualifying advertisements
must be provided when the nomination is lodged.

Employers should retain evidence showing the actual advertisement
content and dates rather than relying only on an invoice from the
advertising platform.

Where LMT applies, the employer still needs to test the Australian
labour market in accordance with the applicable rules.

The purpose is to demonstrate recruitment activity for the nominated
position, not merely to create an advertisement after the sponsorship
decision has already been made.

Employers should conduct a genuine recruitment process and retain
evidence of it.

The Migration Act contains exemptions where Australia's international
trade obligations apply.

The current LMT instrument also provides alternative evidence
arrangements for specified select occupations or select positions.

These can include certain exceptional-talent positions, specified
intra-company situations, particular existing sponsored-worker
nominations triggered only by salary or business-structure changes,
positions with annual earnings of at least $250,000, and specified
medical or paramedic positions.

The exemption or alternative arrangement should be checked against the
exact legislative criteria rather than assumed from a job title.

Instead of copies of ordinary advertisements, the instrument can require
a written submission explaining why a suitably qualified and experienced
Australian citizen, permanent resident or eligible temporary visa holder
is not readily available.

These are specific exceptions and should not be used as a general
alternative to LMT.

Home Affairs states that where the agreement specifies LMT, evidence
must be provided with the nomination.

Some labour agreements contain different timeframes or arrangements.

For example, Home Affairs currently states that Category 2
labour-agreement locations align with the two-advertisement standard but
can allow LMT undertaken up to 12 months before nomination.

The actual agreement should therefore be checked.

Home Affairs currently states that establishing and maintaining the
required Memorandum of Understanding with the relevant industry union or
unions satisfies the LMT requirements for that agreement.

This is another reason not to apply the standard 482 advertising
checklist automatically to every Labour Agreement case.

• using only one advertisement
• advertising for less than four weeks
• lodging the nomination after the advertising has become too old
• using social-media-only advertising
• using a general classifieds website
• restricting a LinkedIn vacancy to members
• leaving required information out of the advertisement
• omitting salary when it is required
• failing to provide copies of the advertisements with the nomination
• ignoring a recent redundancy or retrenchment
• assuming an exemption applies without checking the legislative
  criteria

LMT should be planned before the nomination rather than reconstructed at
the last minute.

• LMT applies to the nomination
• no exemption or alternative arrangement changes the requirement
• at least two qualifying advertisements were used
• advertising was in Australia and in English
• applications were accepted for at least four weeks
• advertising falls within the required four-month period
• the title or position description is included
• required skills or experience are included
• sponsor or recruitment agency is identified
• salary is shown if required
• recent redundancies or retrenchments have been addressed
• copies of the qualifying advertisements are ready to lodge

The nomination date should be planned around the advertising dates.