Labour market testing

Labour Market Testing is a critical part of the Subclass 482 – Temporary Skill Shortage visa nomination process. In many cases, employers must advertise the position on two recruitment websites with national reach or other forums for a period of 28 days in the 4 months before lodging the Nomination.

According to the Department of Home Affairs website, evidence of a total of 3 advertisements must be provided at the time the nomination (subclass 482 TSS visa or subclass 494 SESR visa) is lodged, including an advertisement published on the government’s Jobactive website.

All 482 and 494 nominations must include evidence of three job advertisements, which include:

one advertisement posted on JobActive; and

two advertisements posted on either:

  • a national recruitment website (such as CareerOne, Seek, Indeed, Jora, Adzuna, Glassdoor, LinkedIn);
  • the accredited sponsor’s business website;
  • in print media with national reach; or
  • on radio with national reach.

The job ads must include the following details:

  • job/position title;
  • description of the skills, experience and qualification of the role;
  • name of the sponsor (your organisation) or the name of the recruitment agency your business has engaged; and
  • salary or salary range (unless the salary is above AUD$96,400).

For some situations, exemptions to the requirement are available. However, it is important that employers adequately evidence the basis for the exemption in the Business Nomination application or risk refusal and loss of the substantial application fees. There are two main types of exemptions “Select Circumstances” exemptions and International Trade Obligation (ITO) exemptions. Please note that this list changes frequently so please contact us to discuss before proceeding with an application.

Market salary survey

Employers looking to sponsor an employee for a TSS 482 visa must meet certain salary and employment condition requirements. These are designed to ensure overseas workers are paid no less than an Australian worker would doing the same work in the same location, and that Australian workers are not underpaid and/or undercut.

The Annual market salary rate (AMSR) is determined by looking at what you would pay equivalent Australian workers, enterprise agreements or industrial awards, job outlook information, advertisements for the last 6 months in the same location, remuneration survey or advice from unions or employer associations.

In determining the AMSR, we utilise a wide spectrum of government and corporate sources so as to achieve the highest level of accuracy possible.

The annual market salary rate for the nominated position can be established by providing at least 2 independent sources of information.

Some methods of satisfying this requirement:

  • An employment contract of an Australian citizen or permanent resident that is working in the same position and location as the nominee.
  • Relevant industrial award; the proposed salary can be higher than the level specified in the relevant award.
  • In addition, the employer will also need to demonstrate that the terms and conditions for the nominee are no less favourable than the terms and conditions of employment that would be provided to an ‘equivalent Australian citizen or permanent resident’.

Where there is no equivalent worker, agreement or industrial award, you can provide adverts for similar roles outlining the salary and written advice from a union or employer association.

It is also good to include the responsibilities of the nominated position so as to highlight the complex responsibilities of the nominated position and provide additional justification for the annual salary being paid to the nominee.

Genuine position

The genuine position requirement is a criterion of all employer-sponsored visa applications that the position which is identified in the nomination application is a genuine position. This requirement is in place to ensure that the employer-sponsored visa pathways are being used to fill genuine positions which the employer has not been able to fill from the Australian labour market.

One common regulation which case officers commonly cite when refusing applications is Regulation 2.72(10)(f). This regulation is basically an onus put on the business to prove the genuine need for the nominated position in the business. This is a criterion that needs to be satisfied at the nomination stage of the employer sponsored visa. The Department focuses very closely on maintaining the integrity of the employer visa programme and as a result, there is a particularly stringent focus in assessing if the nominated position is a “genuine position”.

From the viewpoint of the Department, these areas need to be thoroughly addressed in a Genuine Position Report

There is a genuine and ongoing need for the position due to various indicators and reasons

The responsibilities of the nominated position are consistent with the activities of the business

There is a clear lack in the local labour market to fill the position

The position is critical and highly essential in the business

There is no one else in the business who can perform the responsibilities of the position

These are some of the common reasons why cases do not meet the genuine need criterion:

  • Insufficient evidence, explanations and research were provided to why the business was unable to hire a suitable local candidate
  • Background information was not clearly written to give the Case Officer a clear understanding of the activities of the business
  • With an inadequate understanding of the business, it is difficult for the Case Officer to understand the reasons for why the new position was created
  • The business was unable to show that the responsibilities of the nominated position are consistent with ANZSCO
  • The business did not provide adequate explanations and evidence to show that the responsibilities of the nominated position are consistent with business activities and that the nominee will perform the full breadth of responsibilities listed
  • Explanations and evidence were not given to state that there are no other roles in the business that can perform the responsibilities of the nominated position
  • Inability to show the specialised nature and specialised requirements of the nominated position which will also reflect additional difficulties in hiring a suitable local candidate

In writing a strong Genuine Position Report, we recommend the writer keeps these points in mind:

  • Keep to the point and do not over-elaborate as sometimes writing too much will give the Case Officer the opportunity to nit-pick on your report.
  • Give an overview of the type of product/service the company offers as well as some insight into the industry as not all case officers are knowledgeable in all fields of business.
  • Explain more on the need for the position in the company and not too much on the need for the particular nominee in the company. This is to prove that the need for the nominated position in your business is genuine and that the position was not created to facilitate the stay in or entry to Australia for the nominee.
  • Answer all specific points raised by the case officer in the checklist and provide as much evidence as possible!
  • Case officers do not know the ins-and–outs of the employer’s business so it is our job to explain it fully to them!
  • Applications in which the position is already existing in the business and where the nominee is already onshore working on a part-time basis will have a distinct advantage over positions that are entirely new.
  • Industry research is also very useful as supporting evidence for the various Genuine Need Indicators as these are all facts that can be easily verified and will make the report more legitimate and genuine
  • If there are any occupational caveats those need to be addressed as well to ensure that the position is not excluded because of the caveat

Provide photos wherever possible, this will give the case officer a clearer understanding of the operations of your business and how the nominated position fits into the business

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