Immigration may be wrongly interpreting labour market testing
By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
It looks like Immigration may be wrongly interpreting the advertisement requirements for labour market testing.
The legislative instrument, on the question of ‘duration’ of advertising states:
“Duration
(5) Applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when an advertisement for the position is first published in accordance with subsections (2) to (4) on or in any of the following:
(a) print media;
(b) radio;
(c) website.”
It looks like Immigration is mixing up how to interpret s140GBA(6) and (6A) of the Migration Act.
In the end only the legislative instrument can determine the ‘duration’ of advertising, subsections s140GBA(6) and (6A) do not determine the duration.
As can be seen the ‘duration’ in the legislative instrument only refers to the time during which applications would be accepted.
Technically the relevant advertisements don’t have to go on for 4 weeks, it is only that the position must be open for 4 weeks.
Hence every advertisement should state that the following:
This position was first advertised on [X date] and applications will be accepted up until midnight [of the 28th day after the day of the advertisement was lodged, excluded the date it was lodged]
Let’s say the advertisement was first published on 1 November then the advertisement should state:
“This position was first advertised on 1 November 2023 and applications will be accepted up until midnight Sydney time of 29 November 2023.”
Basically the position is open for acceptance for 29 days, ie 28 days excluding the day the advertisement was first published.
To be safe and avoid arguments with Immigration, any website advertising should run for 4 weeks without interruption, ie pay for the advertisement to remain on the relevant website for 29 days (including the day it first goes live).
The legislative instrument states:
“ 8 (2) The language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
8(3) The nominated position must be advertised:
(a) on the Australian Government Workforce Australia website (https://www.workforceaustralia.gov.au); and
(b) in at least 2 advertisements on or in one or more of the following:
(i) a recruitment website with national reach in Australia (other than the website mentioned in paragraph (a));
(ii) print media with national reach in Australia;
(iii) radio with national reach in Australia;
(iv) if the approved sponsor is an accredited sponsor—the approved sponsor’s website.
8(3A) Each advertisement of the nominated position for the purposes of subsection (3) must be commissioned or authorised by the approved sponsor.
8 (4) Each advertisement of the nominated position for the purposes of subsection (3) must include the following details of the position:
(a) the title or a description of the position;
(b) the skills or experience required for the position;
(c) the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d) the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.”
As far as duration is concerned, it would not be expected that a newspaper advertisement would have to be published everyday separately for 4 weeks, 2 separate newspaper advertisements in publications with national reach could be published as long as applications for the job don’t close until the 28th day after the advertisement was first published. In other words, 2 separate advertisement on different days in a daily newspaper would meet the LMT advertising requirements. Of course hardly anyone advertises in print media any more.
But Immigration seems to think though, that if the advertisement is on a website then the advertisement must remain live on the website for 4 continuous weeks. The legislative instrument simply does not say that. All that it says, is that applications for the job must be accepted for 4 weeks after the date of first publication.
There are a couple of errors some employers make. One is that the successful applicant is chosen before the 4 weeks expire. No decision on who the successful applicant is, should be made until the end of 4 weeks from the date of first publication. Otherwise Immigration may argue that the advertising was not genuine.
Secondly the contract of employment must specify that the employment subject of the visa will commence after the visa is granted. Of course after that 4 weeks expires the successful applicant could start work before the visa grant on a informal basis but the formal contract should provide that the employment pursuant to that contract does not commence until after the visa is granted.
Note paragraph 8(4)(d) of the legislative instrument requires the salary to be published if the annual earning are less than $96,400.
Any refusals based on a false requirement for continuous advertising for 4 weeks would be wrong and should be challenged in the AAT!
I attach 2 documents, one is the extract from the Migration Act and the legislative instrument on LMT and secondly the actual legislative instrument itself.