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IMPACT – High
What is the change?
As outlined in our news alert of 11 November 2013, the Department of Immigration and Border Protection (DIBP) may require labour market testing (LMT) prior to nominating overseas workers for Subclass 457 visas. The new rule becomes effective 23 November 2013. LMT may be required for both standard and accredited sponsors. LMT is not required under a labour agreement.
DIBP has now released a detailed LMT policy. The policy includes exemptions from LMT as they apply under Australia’s international trade obligations, occupations exempt from LMT by way of gazette notice, when LMT is required, what will suffice as an effort in LMT and additional requirements when a business has retrenched workers.
Exemptions Under Australia’s International Trade Obligations
This is particular welcome news for “Executive or Senior Manager” nominated roles, and for individuals who have already resided in Australia on a subclass 457 visa for at least two years, who are being nominated by the original sponsoring entity for a further subclass 457 visa.
What Occupations are Exempt from Labour Market Testing?
All occupations have been exempted by the government from labour market testing apart from the occupations listed here.
It is evident that all professional positions apart from engineers and nurses have been exempted. It is clear that most semi-professional and trade occupations will require LMT.
Labour Market Testing – What Will Suffice?
It is evident that LMT will only be required when a nomination is not exempt under Australia’s international trade obligations or when a position is not exempt under the government’s list of exempt occupations.
When LMT is required, the following steps must be taken:
DIBP encourages the use of the ‘Summary of Domestic Recruitment Efforts’ Form. The form is attached here. The form is a form of self-compliance. If the form is completed in full by the nominator, this should suffice and no further evidence of LMT should be required. It should be noted that penalties will apply if misleading or false information is provided on the form.
Some positives to take out of the actual mechanisms of LMT:
Additional Requirements for a Business With Recent Retrenchments
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 the nomination, the business must also provide information about those redundancies or retrenchments.
The business must undertake LMT after those redundancies or retrenchments.
Policy confirms that this requirement only relates to the same or similar occupations to the nominated occupation. For example, if a construction company made a bricklayer redundant prior to nominating a carpenter, this would not be relevant to the nomination. However, if the same company is nominating a bricklayer, LMT must be conducted prior to lodging the nomination and evidence provided with the nomination.
This is a common sense approach to redundancies.
BAL analysis: The current Australian Government inherited LMT from the previous government. The current government did not support the introduction of LMT, but because of legislative complexities, it is currently unable to rescind the LMT legislation.
It appears that the government has attempted to introduce a LMT ‘light touch’ which will largely be in the form of self-compliance when required. The fact that many occupations have been exempted and some individuals will be exempt under Australia’s international trade obligations ensures that LMT is welcome. When LMT is required, we welcome the large number of advertising options available and the flexible nature in the self-assessment approach.
BAL Australia is holding a webinar to further examine the introduction of LMT, on Friday 22 November 2013, 11.30 am Australian Standard Eastern Time.
This alert has been provided by BAL Australia. For additional information, please contact Australia@bal.com.
MARN: 9683856
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
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