The Labour Market Testing (LMT) provisions for temporary skills shortage visas (TSS) do not apply when it is inconsistent with Australia’s international trade obligations. These obligations fall under two categories – that is, Australia’s commitments under Free Trade Agreements (FTAs) and World Trade Organization (WTO) General Agreement on Trade in Services (GATS).
Australia and the United Kingdom (UK) have signed the Australia-UK Free Trade Agreement (A-UKFTA), with entry into force expected during the course of 2022. The free trade agreement is intended to strengthen diversification and post -COVID-19 recovery while driving increased trade in goods and services, facilitating increased job creation and two-way investment.
Specifically, the legislative instrument – Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 specifies the specific international trade obligations, relevant to Labour Market Testing, that have been determined to be obligations for which it would be inconsistent to require a sponsor to satisfy the Labour Market Testing condition.
Commencing on 21 November 2022 Migration (International trade obligations relating to labour market testing – Australia-United Kingdom Free Trade Agreement) Amendment Determination (LIN 22/098) 2022 inserts the Australia-United Kingdom Free Trade Agreement (AUKFTA) into the legislative instrument.
The practical effect of this legislative instrument is that evidence of LMT is not a nomination requirement for the Subclass 482 visa in any of the following circumstances, if:
The nominee is:
- 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
- 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
- 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
- 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.
The 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. For the purposes of ITO the following occupations are considered to be Executive or Senior Managers: Corporate General Manager; Chief Information Officer; Advertising Manager; Chief Executive or Managing Director; Finance Manager; Sales and Marketing Manager; Human Resource Manager; or Supply and Distribution Manager.
*in this circumstance relating to permanent residents of Armenia, Canada, New Zealand or Switzerland.
The abovementioned ITO exemptions do not apply for nominations lodged under a labour agreement or the Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa.
Employers may now be able to access certain LMT exemptions. Please contact your CML representative to determine whether you can access an exemption for LMT.