TSS visa and the new Labour Market Testing requirement

TSS visa and the new Labour Market Testing requirement

The TSS visa and Labour Market Testing (LMT) – No more Gumtree ads!

TSS visa  – The advertising or LMT requirements that a business must meet in order to successfully nominate an overseas worker for the new TSS visa are much stricter than they were under old subclass 457 visa legislation.

The detailed requirements are:

  • The position must have been advertised in Australia.
  • The advert have been in English and must have included the following information:
    • the title, or a description of the position;
    • the name of the sponsoring business or the name of the recruitment agency being used by the sponsoring business; and
    • the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently $142,000). (This will reduce to $96,400 on 12/08/1818)
  • at least two advertisements must have been published:
    • on a national recruitment website with “national reach”. A recruitment website “with national reach” is a prominent or professional recruitment website that publishes advertisements for positions throughout Australia. A general classifieds website or an advertisement solely through a social media platform, e.g. Twitter or Instagram is not an acceptable method.
    • in print media with a “national reach”. This includes national newspapers or magazines that are published at least monthly and are marketed throughout Australia.
    • on national radio. Radio with ‘national reach’ includes radio programmes that are broadcast or syndicated nationally.
  • If the advertisement is published on a website, the Department expects the advertisement to have been “live” for at least 21 consecutive calendar days (or at least 28 days for nominations lodged on or after 12/08/18).
  • If the advertisement is published in print media or on radio, the Department expects that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days (or at least 28 days for nominations lodged on or after 12/08/18).
  • Advertising can have been carried out by a third party if authorised to do so by the sponsor (for example, an associated business or a recruitment agency). The Department doesn’t require the sponsor to have placed the advertisement itself.

As you can see, a serious and relatively long term advertising campaign is now required in order for the Department to assess whether there is a position in your business that can’t be filled by an Australian citizen or permanent resident.

If you are thinking about offering longer term employment to an overseas worker who is currently working for you, for example someone on a working holiday visa or a student visa, then should plan in advance and make sure you have undertaken the required advertising and can demonstrate that you haven’t been able to find an Australian citizen or permanent resident to fill that role. It is important to understand the TSS nomination and TSS visa application requirements before submitting an application.

The new TSS visa rules are complex. Consider getting professional advice in order to ascertain whether your business and the potential visa applicant will be able to meet meet the new TSS nomination and TSS visa requirements and we’d recommend getting advice well in advance of any looming visa deadlines!

Contact Esther Thurbin, our TSS visa guru, for more information or visit the Department of Home Affairs website.

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