Is Labour Market Testing required for the Employer Nomination Scheme (Subclass 186) visa?
If you're a skilled worker looking to live and work in Australia permanently, the Employer Nomination Scheme (Subclass 186) visa is one of the best pathways to permanent residency. This visa allows skilled workers to be nominated by their Australian employer and once granted, lets them live and work permanently in Australia.
If you're an employer considering sponsoring a foreign worker through this visa, you might be wondering whether labour market testing is required as part of the process.
In this blog post, we break down the details and requirements of the Subclass 186 visa and clarify the role of labour market testing in this program.
Who is eligible for the Employer Nomination Scheme (Subclass 186) Visa?
The Employer Nomination Scheme (Subclass 186) visa is an employer-nominated visa which allows skilled workers to live and work permanently in Australia. It’s available to individuals who have been nominated by their employer for a role in Australia, provided they are being nominated in a genuine position, and if they have the necessary skills and qualifications, amongst other requirements. This visa is designed to help Australian employers fill skilled positions when there is a shortage of qualified workers in the local labour market.
The Subclass 186 visa has three main streams:
Temporary Residence Transition Stream: For individuals who have worked with their employer on a Temporary Skill Shortage (TSS) (Subclass 482) visa or Skills in Demand (Subclass 482) visa for at least two (2) out of the last three (3) three years.
Direct Entry Stream: For those who have at least three (3) years of work experience and a positive skills assessment in a nominated occupation on the Core Skills Occupation List.
Labour Agreement Stream: For individuals nominated by an employer through a Labour Agreement, such as an Industry Labour Agreement, Company-specific Labour Agreement or Designed Area Migration Agreement (DAMA) and meet the requirements in the relevant Labour Agreement.
What is Labour Market Testing?
Labour Market Testing (LMT) is a process required by the Australian Government for certain Australian visa programs to ensure employers have made genuine efforts to hire workers from the local labour market before sponsoring foreign employees. It involves advertising the job vacancy publicly for a set period on platforms like SEEK or LinkedIn, and documenting the lack of suitable local applicants, so as to demonstrate that the business has a genuine need to sponsor an overseas worker.
Employers who need to conduct labour market testing:
Typically need to advertise the position through specific channels such as national recruitment platforms
Must prove that the role has been advertised for a minimum period (usually 4 weeks within the last 4 months)
Should demonstrate that no suitable Australian worker was available to fill the position
LMT is generally required for visas like the Skills in Demand (Subclass 482) visa and the Skilled Employer Sponsored Regional (Provisional) (Subclass 494) visa, and to a certain extent, may be recommended for certain Employer Nomination Scheme (Subclass 186) visa matters. However, it may be waived in certain cases where exemptions apply, such as pursuant to Australia’s international trade obligations with other countries.
Is Labour Market Testing Required for the Subclass 186 Visa?
In general, labour market testing is not a mandatory requirement for the Subclass 186 visa itself:
1. Labour Market Testing for the Direct Entry Stream
Labour market testing is not required for the Direct Entry stream of the Subclass 186 visa. This stream allows employers to nominate skilled workers from overseas without needing to prove that they’ve tested the local labour market first. The applicant simply needs to meet the skill requirements for the role and be nominated by an eligible Australian employer.
2. Labour Market Testing for the Temporary Residence Transition Stream
For the Temporary Residence Transition stream, labour market testing is not required either. This stream is designed for workers already on a Temporary Skill Shortage (Subclass 482) visa or Skills in Demand (Subclass 482) visa who have worked for their employer for at least two (2) out of the last three (3) years. As these individuals are already employed and in Australia, there's no need for labour market testing to demonstrate that the position could not be filled by a local worker.
3. Labour Market Testing for the Labour Agreement Stream
In the Labour Agreement stream, depending on the individual terms of the relevant Labour Agreement, certain employers may need to demonstrate their need for foreign workers for specific roles when requesting a labour agreement to nominate an overseas worker for permanent residency, such as through evidence that previous attempts to fill a nominated position from the local labour market were unsuccessful, despite repeated advertising of the position. Nonetheless, this is not generally the same as standard labour market testing and labour market testing is not a formal requirement in the labour agreement stream.
Conclusion: Labour Market Testing and where this may be recommended for the Subclass 186 Visa
In conclusion, labour market testing is not a formal requirement in the Employer Nomination Scheme (Subclass 186) visa and is therefore not absolutely necessary for a Subclass 186 visa. However, labour market testing (LMT) is often a key part of the application process for employers when nominating a position under certain circumstances, and can be particularly useful especially in the Direct Entry stream and the Labour Agreement stream. This is because a nominated position will only be approved for Subclass 186 visa purposes if a nominating employer can demonstrate that there is a genuine need for the nominated person to be employed in the nominated position.
While Departmental policy acknowledges that Subclass 186 visa nominations in the Temporary Residence Transition stream have previously been assessed against the genuine position requirement (i.e. during the processing of the nominee’s previous Subclass 457 visa or Subclass 482 nomination and/or visa application), there are additional considerations which may apply when it comes to the Direct Entry stream, so as to establish that there indeed exists a genuine need for a nominated person to be employed in the nominated position.
These factors may include any evidence that the position can only be filled by a foreign worker, which is best demonstrated through previous labour market testing efforts. In certain cases, the absence of such evidence may lead to an adverse finding about the genuineness of the position, including that it has been created to secure a migration outcome for the nominee (as opposed to being genuinely need in the business), and labour market testing may therefore be recommended in such cases.
Where can I find assistance with a Subclass 186 visa application?
Whether you are an employer interested in sponsoring a skilled worker or nominating an overseas worker for a Subclass 186 visa, it is always prudent to seek professional advice to ensure that you meet all the criteria and understand the requirements in detail.
Our immigration lawyers at Inclusive Migration have extensive experience in advising employers, sponsored employees and prospective migrants to Australia about their employer-sponsored and skilled migration options in Australia. Should you wish to discuss your eligibility for migration to Australia through employer-sponsored and/or general skilled migration pathways, please email info@inclusivemigration.com.au or submit an enquiry using the contact form on our website.
