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Original Publication Date - 14/02/2022
These are the top three issues that we come across when assisting employers with employer sponsored visa applications.
1. Labour Market Testing (LMT)
LMT requirements are rigid and prescriptive. The requirements do not reflect standard industry practiceand this often results in employers often having to redo LMT. This disadvantages employers in terms of competitiveness (competitors know how much you are offering for roles) and delays ability to fill immediate skills shortages.
The following are common issues we see in practice:
- Job ads containing insufficient information - job ads must contain the information the Department requires.
- Salary range is not mentioned – for salaries under $96,400, employers need to specify at least a salary range for the position.
- Job titles do not match job offered – information and role offered must match.
- Evidence of job ads – copies of the actual job ads placed. If we cannot provide evidence, we will not meet LMT requirements.
- Job ads not advertised on acceptable platforms – this includes a mandatory post on llllthe government JobActive website.
The Department will refuse applications if LMT requirements are not met. A standard TSS nomination application for a 4-year medium long-term visa for businesses with an annual turnover of greater than AUD10 million costs $7,530 in government lodgement fees and levy. This does not include visa costs or costs associated with delays where LMT needs to be reconducted. Not understanding LMT requirements can turn into a costly mistake and refusals can affect a sponsor’s accredited status. LMT is a mandatory requirement and there no refunds are available for refused applications.
2. Choosing candidates who have insufficient relevant work experience and/or do not meet skill level requirements for an eligible occupation
A common issue we see is candidates not having sufficient skilled work experience. For TSS visas, the Department requires applicants to have 2 years, full time (38 hours or equivalent part time) work experience in the last 5 years. Work experience must be paid and performed at the required skill level; post qualification related to the occupation.
The 2 years recent work experience requirement often rules out graduates who have only completed a Bachelor degree and applicants who work under casual employment arrangements. For Graduates who have gained work experience as part of their Masters/PHD, the Department will assess on a case-by-case basis.
It is expected that candidates meet skill level requirements for the occupation that they are nominated in on their TSS visa. Most skilled occupations will require candidates to have formal qualifications that are relevant to their position. There are some occupations that do allow candidates to have rely on work experience in lieu of formal qualifications.
It is important to note that whilst candidates can rely on their work experience to meet skill level requirements, in the event where they are required to provide a skills assessment, this will hinder their ability to obtain a skills assessment as they may not necessarily meet skills assessment criteria where formal qualifications are required.
3. Evidencing Australian Market Salary Rate (AMSR)
To meet TSS nomination requirements, employers must pay a salary excluding non-monetary benefits that is:
- Above the Temporary Skilled Migration Income Threshold (TSMIT), currently $53,900; and
- In line with Australian market salary rates (AMSR) for the nominated position.
The AMSR is what an Australian worker earns, or would earn, for performing equivalent work on a full-time basis for a year in the same workplace at the same location. If a sponsor has a more or less experienced worker, than the nominee, doing similar work at a lower or higher pay grade then they are not considered an equivalent Australian worker. The AMSR must also be above TSMIT.
To prove that this requirement has been met, employers are required to provide documents to show how salary was determined and benchmarked. Below is a decision tree that breakdown what employers need to provide to meet the AMSR requirement.
It is critical to avoid these issues as it can impose delays with the lodgement of applications and potentially, result in a TSS nomination or visa refusal if requirements are not met. Employers should screen candidates more thoroughly (and seek professional immigration advice on eligibility) and incorporate the Department’s requirements on LMT especially with regards to the manner on how LMT is conducted and information required in the job ads. By doing this, employers can avoid delays with their ability to fill positions with suitably qualified candidates.
Employers should screen candidates more thoroughly... and incorporate the Department’s requirements on Labour Market Testing when posting job ads.
