Background
As part of the nomination application for a Temporary Skill Shortage (Subclass 482) visa, sponsors must show they can’t find a suitable Australian worker. As such, to nominate an overseas worker they need to test the local labour market.
Labour Market Testing (‘LMT’) generally involves advertising the position in Australia. The advertisements must meet certain requirements and must be provided to the Department of Home Affairs at the time the nomination application is lodged.
Migration legislation provides that a sponsor can seek an exemption for Labour Market Testing (‘LMT’) where it would conflict with Australia’s International Trade obligations (‘ITO’), in any of the following circumstances:
- the worker you nominate is a citizen/national of China, Japan, Mexico, Thailand or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand or Singapore
- the worker you nominate is a current employee of a business that is an associated entity of your business and the associated entity is located in an Association of South‐East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand
- the worker you nominate is a current employee of an associated entity of your business and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia
- your business currently operates in a WTO member country or territory and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs
- the worker you nominate is a citizen or an eligible permanent resident of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.
New Trade Agreements
Until now, Australia had ITOs with the following countries: China, Japan, Mexico, Thailand, Vietnam, Canada, Chile, South Korea, New Zealand and Singapore.
A new Legislative Instrument relating to the Determination of International Trade Obligations with regards to LMT came into effect on 28 January 2020 (link below). This Legislative Instrument repealed the previous Legislative instrument in relation to LMT and included three new free trade agreements:
- the Peru-Australia Free Trade Agreement (PAFTA) – enters into force 11 Feb 2020
- the Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA) – not yet in force
- the Free Trade Agreement between Australia and Hong Kong, China (A-HKFTA) – entered into force 17 Jan 2020
As a result, we are expecting LMT-related exemptions for Peru, Indonesia and Hong Kong nationals to be available shortly.
The Department of Foreign Affairs and Trade consulted with public and targeted stakeholders before, during and after the conclusion of the negotiations of the three new agreements. The consultation included in-person meetings with relevant stakeholders, requests for written submissions and specific outreach sessions with individual businesses, peak bodies and unions and civil society representatives.
Source: Federal Register of Legislation
