The long awaited Control of Housing and Work (Jersey) Law 2012 (the "new law") is due to come into force on 1 July 2013 replacing the Housing (Jersey) Law 1949, the Regulation of Undertaking & Development (Jersey) Law 1973 and the Hawkers and Non- Resident Traders (Jersey) Law 1965.
The purpose of the new law is essentially the same as the laws referred to above which are to be repealed – regulating who can own and occupy property in the Island, the control of the set up of new business in the Island and regulating the number of employees engaged in such business. It is hoped that the new legislation will be easier to interpret whilst introducing a more effective system of enforcement which is compliant with international human rights principles. Under the Housing (Jersey) Law 1949 there were 15 categories of residential status. These are being replaced by four new categories which are briefly described as :-
Entitled: an individual who has completed ten years continuous residence in the Island, whether they are Jersey born or not together; or someone who may have been granted Entitled status on the ground of hardship; or an individual who is granted Entitled status on the grounds of it being in the best interests of the community (formerly the Regulation 1(1)(k))
Licensed: an individual who is required by local business as an "essential employee" (formerly the Regulation 1(1)(j))
Entitled to Work: an individual who does not have Entitled or Licensed status but who has resided in the Island for a continuous period of 5 years before applying for a registration card; or who is the spouse of a person with Entitled, Licensed or Entitled to Work status; or was divorced less than five years ago from a person with Entitled, Licensed or Entitled for Work status and has been continuously resident since the divorce; or someone who commenced work for an undertaking before the age of 16 years and has worked for that undertaking since attaining that age.
Registered: an individual who has been continuously resident in Jersey for three months and who does not fall into any of the above three categories.
Everyone will eventually carry a registration card (which will be combined with the existing Social Security cards) which will record your full name, date of birth, social security number and residential status.
Newcomers to the Island will procure the right to work at the end of three months continuous residence and will then be issued with a registration card carrying this information by the Population Office and other States of Jersey authorities.
The rest of us will apply for a registration card when circumstances require it when we move job or change our residential address.
From an employers point of view the following checklist may assist:-
- Is the new employee in possession of a registration card?
- Is the new employee Entitled to Work?
- Has the new employee notified the Population Office of their current address?
- HR to complete an appropriate form advising Social Security of the employment;
- Has the new employee registered his/her children (under the age of 16) with the Population Office?
- Remind anyone leaving your employment that they will need to obtain a Registration Card;
- Keep track of the status of your current employees as they move through the four categories described;
- Temporary staff are covered by an employment or recruitment agency;
- Whilst your Licensed staff may now purchase or rent property in their own name (rather than incorporating a limited liability company or having their employer enter into the lease), they will lose their right to retain ownership of or occupation of such property should they cease their employment or otherwise lose their essential status. Whilst there will no longer be formal undertakings by the employee in favour of the Population Office, new powers of enforcement will enable the Minister to seek their vacation of any such property.
New business undertaking
Any business in position of a valid licence issued pursuant to the Regulation of Undertakings & Development (Jersey) Law 1973 is deemed to have a valid and existing licence under the new law. The existing system of licensing new business set up in the Island will be maintained under the Control of Housing & Work Law with the definition of an undertaking being broadly the same as under the current Regulation of Undertakings Law.
New licenses will be divided into three categories:-
- Business licence
- Hawker's licence
- Non-resident trading licence
The application process will also be similar to that currently in place but probably with the addition of a fee charged for the application process.
One significant change which will affect both new and existing undertakings is that the licence will now only limit the number of Licenced and Registered employees and therefore businesses will not be restricted on the number of Entitled or Entitled to Work. However no new employee may be employed without a valid and appropriate registration card.
Change of Ownership
Another important change in the regulation of business licences relates to the change of ownership or control provisions which have been incorporated into the new law. This will apply to all new and existing undertakings.
Any change in the ownership of the business must be disclosed to the Population Office within 60 days of the change or the existing licence will be deemed to have lapsed. Therefore prior to any significant change of ownership, a new business licence application is required to be made.
A "significant" change in ownership insofar as concerns a limited liability company is deemed to be the acquisition of more than a 60% control of the shares of the company by persons who are NOT Entitled, Licensed or Entitled to Work.
These provisions apply on only the first occasion when the ownership of such company falls into the hands of non local owners and does not affect any subsequent sales.
Companies listed on the Stock Exchange are not affected.
Guidelines are to be issued by the Minister for the change of ownership of businesses not owned through a limited liability company which will specify the date upon which the guidelines will come into effect.
Another major change under the law is that businesses will not have to apply for specific permission in respect of each essentially employed member of staff. All that is required is that the employee be engaged to work in a post which accords with a permitted description of work within the Licensed post conditions on the employers business licence Currently some questions remain unanswered but no doubt will become clearer in practice.
The powers of enforcement enshrined under the new law are similar to those under the Financial Services (Jersey) Law 1998.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.