Working visa applicants should take note of LMT exemptions (Labour Market Testing Exemptions). LMT ensures that Australian citizens and permanent residents have the first opportunity to apply for job openings. However, there are exemptions where employers don’t have to go through LMT. This results in faster hiring procedures and enables them to have overseas workers start immediately!
Let’s examine the importance of LMT in the world of overseas employment and its exemptions. Who knows, you might qualify for one or more.
What Is LMT?
Before we explore the three exemptions to LMT in Australia, let’s first identify what LMT is. Labour Market Testing are requirements set for employers who want to hire overseas workers for them. This is a strict requirement for sponsors to test the local labour market before hiring an overseas worker.
When sponsors nominate an applicant they must provide a copy to the Australian Government’s Workforce Australia of the advertising material used to advertise the position. Most nominations should have been advertised for at least four weeks within the four-month period after lodging the nomination application. All 482 and 494 nominations must include evidence of three job advertisements. Back then, only two job advertisements were required.
The following should be present in the job advertisement:
- Job Title
- Job Description
- Sponsor Name
- Salary range if the salary is under $96,400 AUD
The advertisement must be in English and must meet all specified advertising requirements. Take note that the employers must have conducted Labour Market Testing within the four months immediately before an applicant can lodge a TSS 482 visa nomination. Employers should also submit an explanation to Workforce Australia as to why a suitably qualified Australian worker could not be identified.
Learn more about LMT: Labour Market Testing | JB Solicitors
What Are the Three LMT Exemptions?
Indeed, Labour Market Testing (LMT) ensures that Australian citizens and permanent residents have the first opportunity to apply for job openings. While the process is lengthy, there are three LMT exemptions wherein job applicants do not need to undergo the process.
LMT Exemption 1: Intra-Company Transfers
This is one of the most common types of LMT exemptions. Think of a manager who works in a Filipino Subway branch and wants to transfer to an Australian Subway branch. An Australian employer may transfer an employee from their overseas branch to their branch if they have seen him as a good fit for them.
Intra-company transfers refer to the transfer of an employee from a foreign branch of a company to its Australian branch. This is a common practice for multinational companies that must move employees around to manage their operations. The Australian government allows intra-company transfers as an exemption to the labour market testing (LMT) requirement for employers seeking to sponsor foreign workers.
Qualifications for This Exemption
There are certain qualifications for this exemption. Let’s look at them one by one:
- The nominated employee must have worked in an overseas branch of the company for at least 12 months.
- Additionally, they must be transferred to Australia to work in a similar role for the Australian branch.
- The employer or an associated entity of that sponsor must also provide evidence that the transfer is necessary. They can’t simply hire a random worker in the overseas branch to support the company’s operations in Australia.
Let’s use the Subway employee example again. The Filipino Subway manager has displayed managerial skills which led to the success of the Filipino branch for over 3 years. Due to poor management in the Australian Subway branch, they offered the Filipino Subway manager to transfer to Australia.
How Will Australian Branches Benefit From This?
Intra-company transfers significantly benefit multinational companies operating in Australia by allowing them to transfer skilled employees. With their exceptional achievements from their overseas branches, they can greatly help Australian branches that also need them.
This exemption to the LMT requirement helps streamline the visa application process and reduces the administrative burden on employers. It also enables companies to leverage the skills and expertise of their existing employees to support their Australian operations without having to search for talent locally.
LMT Exemption 2: High-Income Threshold
LMT exemptions in Australia include the high-income threshold exemption. The High-Income Threshold (HIT) is a provision that exempts employers from the responsibility of conducting Labour Market Testing (LMT) when hiring foreign workers with an internationally recognised record for certain skilled positions. This exemption allows employers to bypass LMT if they offer a salary above a certain threshold.
As of 2024, this threshold is reviewed annually by the Department of Home Affairs. The current high-income threshold for 2025 is set at AUD 175,000.
Qualifications for the Exemption
Foreign employees should receive a pay package equal to or more than the HIT to be eligible for this exemption. This exemption applies to various visa subclasses, including the following visas:
- Temporary Skill Shortage (TSS) visa (subclass 482)
- Employer Nomination Scheme (ENS) visa (subclass 186); and
- Regional Sponsored Migration Scheme (RSMS) visa (subclass 187).
The HIT exemption aims to reduce the administrative burden on employers while ensuring that Australian workers are not disadvantaged. It also recognises that high-income earners will likely have unique skills and experience that are not readily available within the local labour market. It is important to note that the HIT exemption does not apply to all skilled positions. Employers of that sponsor or recruitment agency must still meet other visa requirements, such as:
- Providing evidence of the genuine need for the overseas worker; and
- Demonstrating attempts to recruit Australian workers before resorting to overseas recruitment.
LMT Exemption 3: International Trade Obligation
Another inclusion to the LMT exemptions in Australia is related to international trade obligations. Australia has a strong commitment to international trade and investment liberalisation. It has entered into several international trade agreements, including the World Trade Organization (WTO) and various bilateral and regional trade agreements.
As a signatory to international trade obligations and the World Trade Organisation agreements, Australia has certain obligations and commitments that it must fulfil. Australia also has ITO with other Southeast Asian nations such as Malaysia, Philippines, Singapore, Thailand, etc. Hence, they may
Australia’s international trade agreement helps eliminate or reduce barriers to trade in goods and services. This includes the elimination of discriminatory measures that affect imports and exports. Any employee is welcome in Australia so long as they meet certain requirements for nominated positions.
However, to meet its international trade obligations, this WTO member country may need to implement certain measures. Such measures may include measures that are inconsistent with its domestic laws, including its labour market testing (LMT) requirements.
Trade Agreements
Under the WTO General Agreement on Trade in Services (GATS), Australia has committed to temporarily allowing foreign workers to enter certain service sectors. This includes sectors such as legal services, financial services, and telecommunications services. To fulfil this commitment, Australia may need to exempt certain occupations in these sectors from the LMT requirement.
Similarly, under various bilateral and regional trade agreements, Australia has committed to temporarily allowing foreign workers to enter certain sectors. For example, the Australia-United States Free Trade Agreement (AUSFTA) provides for the temporary entry of business persons, including executive or senior manager, executives, and professionals. In order to fulfil this commitment, Australia may need to exempt certain occupations in these sectors from the LMT requirement.
Labour market testing is important in ensuring that Australian citizens and permanent residents have the first opportunity to apply for job openings.
The three exemptions discussed in this article are just a few examples of situations where LMT may not be required. Employers need to understand these exemptions and ensure they comply with all relevant legislation when hiring overseas workers. With all the exemptions discussed, only one question remains:
Are You Qualified for LMT Exemptions?
Some successful employees want to work in a new environment and possibly settle in a new country. Thankfully, current work regulations and LMT exemptions are available for certain types of jobs and industries. People who work in highly skilled positions such as senior managers have the chance to work in Australia with less hassles. In addition, LMT exemptions may also be available for certain visa holders, such as those with a 457 or a TSS visa.
Lawyers can assist both employers and visa holders navigate the complex LMT exemptions process. For employers, lawyers can provide guidance on which exemptions may be applicable to their specific situation and can assist in preparing and submitting the necessary documentation to the Department of Home Affairs.
JB Solicitors has a team of lawyers who can provide expert advice and assistance for aspiring overseas workers. We can also assist you in challenging decisions the Department of Home Affairs made regarding LMT exemptions. Our team can help appeal a decision should the DHA refuse an exemption or challenge a decision to revoke an exemption previously granted.
Contact us today and see if you are qualified for LMT exemptions.
