TSS visas: More law, less policy. Labour market testing laws amended

Along with abolishing the training benchmarks, the other major amendment that was brought in yesterday was amendments to labour market testing requirements for nomination applications for Subclass 482 – Temporary Skill Shortage visas.

Labour market testing, which has been tweaked a few times since being re-introduced in 2013, has been substantially amended with a new legislative instrument, which was registered today. It will apply to any nomination lodged from tomorrow.

The instrument provides the period, manner and evidence of labour market testing. While it carries with it its own exemptions for ‘select’ occupation and positions, it does not displace international trade obligations exemptions. ‘Select’ occupations and positions are defined as positions that:

  • Require an internationally recognised record of exceptional and outstanding achievement in the profession or field for a sport, academia and research, or for a top-talent chef;
  • Will be filled by a person employed by a an establish company operating overseas and is nominated by a standard business sponsor operating in Australia who is an associated entity of that overseas company;
  • Are held by existing Subclass 457 – Temporary Work (Skilled) visa or Subclass 482 – Temporary Skill Shortage visa holders but where a new nomination is required because the annual earnings have changed, or the underlying business has changed (for example, by restructuring);
  • Are nominated with annual earnings listed of at least AUD 250 000;
  • Are nominated in a medical practitioner occupation other than for a General Medical Practitioner (ANZSCO 253111) or Medical Practitioner not else classified (ANZSCO 253999); or
  • Are nominated in an Ambulance Officer or Paramedics occupations.

For any of the above, a written submission must be provided by the nominator addressing why a suitably qualified and experienced Australian citizen or permanent resident, or suitably qualified eligible temporary visa holder (working holder maker visas and where the position is in the agricultural industry) was not readily available to fill the position.

When not exempt, labour market testing requires advertising of the position by the approved sponsor, or an organisation commissioned by them, to:

  • Be in English and in Australia,
  • Be advertised at least twice within 4 months (reduced from 6 months) ending on the day on which the nomination application is lodged,
  • Accept applications for at least 4 weeks from when the advertisement was first published on print media, radio, or on a website,
  • Be on either a recruitment website, in print media, or on radio with national reach in Australia or on the standard business sponsor’s website if they are accredited,
  • Provide a title or description of the position, the skills or experience required for the position, the name of the approved sponsor or the name of the recruitment agency if one is used, and the salary of the position if the intended earnings are lower than AUD 96,400.

Most importantly, a copy of the advertising material must accompany the nomination application.

Besides a few changes, it has effectively written into law what was previously only policy.