Control of Housing and Work: draft Exemptions Order.

STATES OF JERSEY

CONTROL OF HOUSING AND WORK: DRAFT EXEMPTIONS ORDER

Presented to the States on 23rd April 2013 by the Chief Minister

STATES GREFFE

2013   Price code: C  R.36

REPORT

1. Introduction

The draft Control of Housing and Work (Exemptions) (Jersey) Order 201- provides limited  exemptions  from  the  requirements  of  the  Control  of  Housing  and  Work (Jersey) Law 2012, as follows –

1. from the requirement to obtain a registration card before starting new work  (these  exemptions  do  not  exempt  a  person  from  needing  a registration card if they are resident in Jersey for 3 months or more);
2. from the requirement of an undertaking to have a business licence (with reference to small scale or time limited activities);
3. from the requirement of an undertaking to remain within conditions restricting the maximum  number of Registered and Licensed staff who are permitted to work for that undertaking (for limited periods).

Furthermore, the Order disregards beneficial ownership conditions applied under the Regulation  of  Undertakings  and  Development  Law,  because  the  new  Law  places uniform  beneficial  ownership  conditions  upon  all  undertakings  (which  require permission to be sought in specified circumstances, mainly where an undertaking is to be sold to either a Registered or non-resident person).

This Order will be formally made effective alongside the main Law on 1st July 2013. In the meantime, it is published as an Appendix to this Report for information.

2. Revisions to the Order since published in April 2011

This Order was published in an earlier draft in April 2011 alongside the lodging of the main  Law.  Since  that  time,  a  number  of  changes  have  been  made  following engagement and consideration.

In particular, the general objective of the Order is to –

1. limit exemptions in areas where immigration and local employment are a concern; for example, visiting construction contractors, while also
2. limiting  red  tape  and  burdens  on  businesses  and  Islanders;  for example, by exempting very short-term or small-scale activities, with particular reference to the residential status of a person.

A number of changes have been made in line with these objectives, most notably –

3. Detailed explanation of Regulations

Regulation 2: Exemptions from the requirement of individuals to Register

• Regulation 2(a): A range of custodial positions can be undertaken for 60 days or less in any 12 month period without triggering the requirement to obtain a registration card, most notably, in relation to being a Director, a Partner, or someone  in  an  equivalent  position  of  responsibility;  for  example,  various safeguarding functions, for example, in relation to the public finances or the protection of vulnerable adults and children.
• Regulation 2(b): Persons who work for an International Financial Services Group which also have an office in Jersey do not have to obtain a registration card if working for the Jersey entity for 60 days or less in any 12 month period. This is provided to facilitate the type of secondment and the movement of  staff  that  takes  place  in  these  businesses,  which  is  essential  for  their operation.
• Regulation 2(c):  A  hawker  or  non-resident  trader  is  required  to  have  a business licence – which controls their ability to work in Jersey, including for how long and for what purpose – so obtaining a registration card adds no extra controls around their ability to work in the Island.
• Regulation 2(d): A person working for a resident undertaking that does not need  a  licence  under  the  Law,  for  example,  the  sale  of  produce  from  a domestic  premise,  or  being  a  small  landlord,  does  not  need  to  obtain  a registration card by virtue of working for that exempt undertaking.
• Regulation 2(e): A non-resident undertaking is required to have a business licence – which controls their ability to operate in Jersey, including for how

long, for what purpose, and how many workers they may have – so obtaining a registration card for each one of those workers adds no extra controls around the ability of a person to work in Jersey.

• Regulation 2(f): A person who works in Jersey for 10 days or less in any 12 month period does not need to obtain a registration card. This is a simple rule to avoid the bureaucracy of someone working for only a handful of days being required to obtain a registration card. (It does exempt a business from obtaining a licence).

Regulation 3: Exemptions from the requirement to have a business licence

Regulation 3(1)(a)–(d): The  objective  of these  Regulations  are simple – to avoid financial vehicles such as investment funds, unit trusts, etc., from requiring a licence where they do not involve persons working for those undertakings who are resident, or where  they  are  resident,  that  they  hold  specified  positions  for  limited  periods, e.g. Directors. As such, the following activities are exempt –

• Regulated activities undertaken by non resident undertakings, or non resident undertakings administered by regulated undertakings, and
• Regulated activities undertaken by resident undertakings, or resident undertakings administered by regulated undertakings, where persons working in the undertaking do so for less than 60 days per year, and are  one  of  a  specified  range  of  positions,  including  Directors, Company Secretaries, and equivalent positions.

It is important to note that where an administering entity provides its own staff to support the administration or direction of an entity they administer, they are providing those  staff  as  a  service  to  the  administered  entity  by  way  of  a  client/customer relationship, and thus those staff remain the staff of the administering entity, and do not cause the administered entity to fall outside the exemption.

• Regulation 3(1)(e):  A  non-resident  undertaking  providing  building  or construction services is required to have a licence if it operates in the Island for more than 5 days in any 12 month period. This exemption will, as such, require so called "white van man" visiting Jersey to obtain a licence after 5 days,  and  if  they  do  not,  compliance  powers  to  require  the  immediate cessation of activities will be applied.
• Regulation 3(1)(f): Activities that have medical purposes are exempt from the requirement to obtain a licence for 60 days in any 12 month period. This exemption is directed toward bodies which are operating on behalf or, or pursuant to arrangements with public bodies, bodies which receive funding from the public, or registered care providers, in recognition of the essential nature of such activities. The exemption has been kept narrow such that it does  not  apply  to  more  discretionary  private  medical  treatments,  such  as medical undertakings visiting Jersey to provide cosmetic procedures.
• Regulation 3(1)(g):  Various  landlord  activities  are  also  exempt,  with  the objective of not requiring a business licence where a landlord is either small scale (5 or less units or premises); a person who is Entitled, Licensed, or

Entitled for Work; or where the landlord is non resident and thus not adding to the resident population. This exemption does not apply to the provision of residential  or  nursing  accommodation  or  lodgings  houses,  or  to  property development. (It should also be noted that the main Law continues to apply provisions which limit the ability to own and occupy property, and as such, this exemption removes a level of duplication in the controls applied over property.)

• Regulation 3(1)(h): The sale of goods from domestic premises is exempt in so far as that sale is incidental to the use of those premises and the sale takes place from the premises. This exemption is included to exempt, for example, the sale of home produce from the requirement to obtain a business licence.
• Regulation 3(1)(i):  The  provision  of  domestic  services  to  not  more  than 2 households is exempt from requiring a business licence. Domestic services are  defined  to  include  gardening,  cleaning,  cooking,  ironing,  nursing  or personal care, or services looking after children. This is consistent with an exemption under policies of the Regulation of Undertakings and Development Law.
• Regulation 3(1)(j): Home working under the Regulation of Undertakings and Development Law did not need a licence until the late 1990s, and persons who worked from home prior to this policy change continued to be exempt from the requirement to have a licence. This will remain the case.
• Regulation 3(1)(k) and (l):  Entitled  and  Entitled  for  Work  persons  are exempt from requiring a business licence as a sole trader in so far as their activities are undertaken for less than 8 hours per week, and this exemption is extended to also include sole traders with Licensed status, where those sole trading activities are undertaken for less than 60 days in any 12 months.
• Regulation 3(1)(m):  Where  none  of  the  other  exemptions  apply,  and  the activity  is  a  resident  one  (being  where  the  majority  of  the  workers  are resident) then registered persons can undertake activities without requiring a business licence for 10 days in any 12 month period.
• Regulation  3(1)(n):  Where  none  of  the  other  exemptions  apply,  and  the activity is a non-resident one (being where the majority of the workers are not resident) a business licence is not required if the undertaking operates for 30 days or less in any 12 month period (this exemption does not apply to hawkers and non-resident traders).

Regulation 4:  Individuals disregarded for the purposes of maximum numbers condition

• Regulation 4(1)(a): A person working as a replacement for another member of staff who is leaving can be disregarded from counting toward the limit placed on an undertakings as to how many Registered and Licensed staff it can employ. This exemption lasts for 30 days and assists, for example, with the training of a successor. This seems a sensible measure to assist business continuity. (Alongside this, the Minister nevertheless retains powers under the main Law such that conditions can be applied such that a Registered or

Licensed person who is leaving must be replaced by an Entitled or Entitled for Work person.)

• Regulation 4(1)(b): A person working as cover for another person who is on leave can be disregarded from counting toward a undertakings limit on how many Registered and Licensed staff it can employ for 9 months in relation to maternity  and  sickness,  or  3 months  in  all  other  cases  of  leave.  This  is proposed  because  a  person  on  leave  would  remain  under  contract  and therefore count toward an undertakings maximum permitted number, when in fact they are unable to actually work.
• Regulation 4(1)(c):  Any  person  working  for  an  undertaking  for  less than 10 days  in  any  12 month  period  is  exempt  from  counting  toward  that undertakings  maximum  numbers.  This  simply  gives  businesses  some flexibility when it comes to engaging temporary staff for very short periods of time.
• Regulation 4(1)(d): Directors of a Company, or Partners in a Partnership, or Member of a Council of a Foundation, or equivalent persons, who are in the Island for 60 days or less in any 12 month period, do not count toward the maximum numbers permitted to work for an undertaking. This is consistent with Regulation 2(1)(a).
• Regulation 4(1)(e): Persons who work for an International Financial Services Group having an office in Jersey do not do not count toward the maximum numbers permitted to work for the Jersey undertaking if working for 60 days or less in any 12 month period. The objective of this exemption is to permit their staff to work in the Island for limited periods. This is consistent with Regulation 2(1)(b).
• Regulation 4(2):  An  employment  agency  can  place  a  person  in  an undertaking utilising exemptions 4(1)(a), (b) and (c) above.
• Regulation 4(3):  Zero-hours  contract  staff  do  not  contribute  to  an undertakings  maximum  numbers  if  they  do  not  do  any  work  for  the undertaking. However, where a zero-hours contract person actually works for an undertaking, they do count toward the maximum numbers permitted to be employed by an undertaking, i.e. a business must cover such workers within their licence.

Regulation 5: Beneficial ownership conditions

This provision disregards beneficial ownership clauses applied under the Regulation of Undertakings and Development Law, which were applied since the late 1990s, and therefore do not apply to undertakings commencing prior to that date, and ensures that beneficial  ownership  conditions  apply  on  all  undertakings  in  the  same  way  as specified in the main Law (which ensures that permission from the Population Office is required should a transaction result in an undertaking ceasing to be more than 60% owned by Entitled or Entitled for Work persons).

APPENDIX

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