GENERAL POLICY STATEMENT 2009
AMENDMENTS
in relation to :
Regulation of Undertakings and Developments (Jersey) Law, 1973 as amended
and
Housing (Jersey) Law 1949
in relation to (j) category licences (‘(j)’)
In general, the document has been amended for customers and other interested parties by improving the language used to clarify Policy including additional practice notes.
Specific amendments are detailed below.
1. SECTION 1 – LAW and POLICY
1.1 A key amendment to the document is the following paragraph – “The policy of the Economic Development Minister as reflected in the Regulation of Undertakings & Development (Jersey) Regulations 1978 as amended, is normally to grant commencement and/or staffing licences in respect of persons who are locally qualified. However, with non-qualified persons, the Minister’s policy is to grant commencement and/or staffing licences provided that it is clearly in the Island’s best interests, as assessed against the above licensing criteria.“
Though this was implicit from the previous policy statements, it was not wholly clear to customers that it is normal practice to grant commencement or staffing licences to locally qualified principals/staff.
1.2 The confidentiality statement is amended to make clear that applications will be forwarded to Jersey Enterprise, as stipulated on the application forms – notwithstanding that applicants can request that their applications are not forwarded to Jersey Enterprise.
1.3 The section on 1(1)(j)s has been updated to make it more consistent publicly with the RUDL decision making criteria, and to be more expansive as to what the Housing Minister considers when making decisions. In doing so, the previous generic 1(1)(j) criteria has been replaced with the specific criteria that are used for RUDL. In particular, the previous policy statement stated the follow:
The main criteria against which each “j” application are considered are –
(i) the contribution made to the Island by the employer - e.g. in terms of tax revenues, service provided, etc;
(ii) the significance of the post in question to the achievement of that contribution;
(iii) the track record of the employer in the recruitment and training of local
people;
(iv) evidence that there is not a satisfactory local candidate for the post in
question.
This has now been replaced with the following:
The criteria against which j applications are assessed:
- The pressure to be placed on the Island’s resources, in particular, its housing stock;
- The need to maintain a balanced and prosperous economy;
- The need to maintain a range of job and training opportunities for locally qualified persons and school leavers, including apprentices, those over normal working age, and people in supported and special employment schemes;
- The importance of the service rendered to locally qualified persons;
- The track record of the undertaking in terms of profitability, and its contribution to tax revenues.
In addition, the Minister may also take into account any other general benefits which the Island may obtain, for example, based on past cultural, sporting, or charitable activities, or the potential effects for Jersey’s reputation and interests, including the nature of any actual or potential media coverage.
In making decisions, business plans and financial details may be requested, as may evidence of investing in training locally qualified persons, and having made appropriate efforts to identify suitable local candidates.
In providing the above, the Housing Minister is merely providing more public guidance as to what he considers in the best interests in the community, and present practice will not discernibly change as a result. This increased guidance is important where such wide discretionary powers exist. The provision remains however highly discretionary.
Clearly, while the criteria are the same, awarding a j consent would require a higher level of expected contribution to Jersey than awarding a RUDL non locally qualified licence position, as the j consent carries the extra benefit and burden of access to controlled housing.
The amended policy statement also makes it clear that reputational and wider social considerations are relevant when considering j applications. This aspect is based on the shortly to be published 1(1)(k) policy, on which guidance was sought. It is felt important to highlight these wider social issues, in part to ensure the 1(1)(j) route does not become a back door into the Island for applicants who may otherwise be refused 1(1)(k) consent.
The amended policy statement also explains the circumstances under which the Housing Minister may be prepared to grant consent to lease property to an essential employee, but not be prepared to grant consent to purchase property.
2. SECTION 3 – PRACTICE NOTES
2.1 Additional practice notes have been added – these are for General Partners, Change of Ownership, and Hawkers and Non-Resident Traders.
2.2 The fulfilment practice note has been amended to read as a practice note rather than an internal policy document. No changes in the fulfilment policy have occurred at this time.
2.3 The practice note for development licences has been removed since very few applications are made, and where they are made, subject to Planning Permission, they are approved as a matter of course. The reason for this being that demand on resources is primarily managed through determining applications for Undertakings licences, rather than via the refusing of Development licences.
2.4 The non-resident contractors practice note has been amended to reflect the Minister’s preparedness to ‘place conditions on the licence as deemed appropriate, particularly in relation to the permitted level and mix of non-locally and locally qualified staff’.
3. SECTION 4 – RUD and HOUSING APPEALS PROCESS
3.1 The appeals processes for RUD and Housing decisions have been incorporated into document for ease of reference for customers and other interested parties.
3.2 The Housing process has been amended to mirror that of the RUD process.
Andrew Bannister/Paul Bradbury
Population Office
30 June 2009
BUSINESS ASSESSMENT & LICENSING SECTION
General Statement of Policy (2009)
in relation to :
Regulation of Undertakings and Developments (Jersey) Law, 1973 as amended
(hereinafter referred to as the ‘Regulation of Undertakings & Development Law’)
and
Housing (Jersey) Law 1949
(hereinafter referred to as the ‘Housing Law’)
in relation to (j) category licences (‘(j)’)
Any trade, business or profession, whether or not carried on for profit, and wherever carried out in the Island, requires a licence before commencing or engaging additional staff.
Under the Housing Law, consent must be obtained before a property can be purchased or leased - consent will be issued in limited cases for essential employees (“(j) category employees”).
Contents
Section 1 - Law and Policy - Introduction
- The Objectives of the Regulation of Undertakings and Development Law
- The Regulation of Undertakings and Development Law Licence
- Manpower Returns
- (j) category essential employees
- The length of the (j) category consent
- Requests for reconsideration
- Confidentiality
| Page Number 3 4 4 5 6 7 7 7 |
Section 2 - Delegated Functions - Regulation of Undertakings and Development Law
- Housing Law in relation to ‘in principle’ (j) category applications
|
8 9 |
Section 3 - Practice Notes - Temporary workers
- Seasonal staff
- Working from home
- Public Sector
- Construction Industry
- Non-resident contractors
- Engagement of domestic staff
- Environmental considerations
- Fulfilment industry
- General Partners
- Change of Ownership
- Hawkers and non-resident traders
|
10 10 10 10 11 11 11 11 12 13 13 14 |
Section 4 - Appeals process - Regulation of Undertakings & Development Law - appeals process
- Housing Law - appeals process
|
15 17 |
Section 1
1. Introduction
Decisions under the RUDL and Housing Law will be made in a fair and transparent manner and on a basis consistent with previous decisions and prevailing policy.
The Economic Development Minister is accountable for the Regulation of Undertakings & Development Law decisions, and the Housing Minister for the (j) category decisions.
The Economic Development Minister and Housing Minister consider applications in a co-ordinated manner, consulting each other, and the Assistant Minister, Chief Minister’s Department. They do this at the Migration Advisory Group, which sits approximately every 2 weeks, and which is also responsible for the direction of migration policies in Jersey.
The Population Office administers these Laws on behalf of the Ministers, with all applications processed by the same small business licensing team. Applications will be dealt with in 15 working days, under normal conditions.
Businesses are encouraged to approach Jersey Enterprise, which offers advice and guidance on a range of matters. For more information visit www.jersey.com/enterprise , or email : enterprise@gov.je .
For specific advice on the Regulation of Undertakings and Development Law and Housing Law, email the Population Office on populationoffice@gov.je , or call us on 448930, or visit us on the 3rd Floor, Jubilee Wharf.
In addition to this General Statement of Policy (2009) more specific guidance on the Regulation of Undertakings and Development Law and the Housing Law as it relates to business, may be issued from time to time in the form of Practice Notes.
2. The Objectives of the Regulation of Undertakings and Development Law
Article 2 of the Regulation of Undertakings and Development Law requires that any person (or a body corporate) "commencing a new undertaking" or "increasing the number of persons engaged in an undertaking", must firstly obtain a licence so to do.
The definition of an undertaking is "any trade, business or profession whether or not carried on for profit". Application forms are available from Jubilee Wharf, 24 Esplanade, or at:
www.gov.je/ChiefMinister/PopulationOffice/Regulation+of+Undertakings
In making decisions, regard will be had to the need to regulate and manage demand on the Island’s resources. This is generally taken to mean that the needs of economic growth are balanced against the additional demand that migration places on the Island’s limited resources, including its environment.
The criteria against which business applications are assessed:
- The pressure to be placed on the Island’s resources;
- The need to maintain a balanced and prosperous economy;
- The need to maintain a range of job and training opportunities for locally qualified persons and school leavers, including apprentices, those over normal working age, and people in supported and special employment schemes;
- The importance of the service rendered to locally qualified persons;
- The track record of the undertaking in terms of profitability, and its contribution to tax revenues.
Decisions are also made having regard to the need to protect the financial and commercial integrity of the Island. The Minister shall also have regard to the provisions of the Competition (Jersey) Law 2005 and the decisions and directions of the Jersey Competition Regulatory Authority, and as far as possible, to wider objectives, with a particular emphasis on encouraging environmental responsibility as a key element of managing demand on resources.
3. The Regulation of Undertakings Licence
A licence may be granted for the commencement of an undertaking or the engagement of additional staff with reference to the above criteria.
A licence to engage staff will usually be issued for three years, and will detail the total number of staff that may be engaged, in particular, those who are not locally qualified.
Persons are deemed locally qualified if they are –
- Residentially qualified for housing purposes, including being a (j) category essential employee;
- Have been resident for the whole of the past consecutive 5 years;
- A spouse of (i) or (ii) above;
- A child under 18 years (or if students under 25 years) of those in (i) (ii) or (iii) above.
The policy of the Economic Development Minister as reflected in the Regulation of Undertakings & Development (Jersey) Regulations 1978 as amended, is normally to grant commencement and/or staffing licences in respect of persons who are locally qualified. However, with non-qualified persons, the Minister’s policy is to grant commencement and/or staffing licences provided that it is clearly in the Island’s best interests, as assessed against the above licensing criteria.
Once granted a staffing licence, an undertaking may manage staff numbers within the terms of that licence. An undertaking may apply for additional staff at any time. Prior to the expiry of a staffing licence, staffing requirements will be reviewed and a new staffing licence may be issued.
In making licence decisions, business plans and financial details may be requested, as may evidence of investing in training locally qualified persons, and having made appropriate efforts to identify suitable local candidates. Applications will be processed more quickly if this information is submitted with the application form.
Reference will also be had to previous relevant decisions, in particular, those taken in relation to similar businesses. This will be done to ensure decisions are fair and consistent, and that businesses operate, as a general principle, on a level playing field with their competitors. In doing this, the Minister will nevertheless be mindful that each case presents its own unique range of facts and matters to consider.
Conditions may also be placed on a licence. Conditions are likely to be applied to maximise the use of the local workforce and may focus on the training and recruitment of local school leavers and apprentices, those over normal working age, or those on supported employment schemes.
Exemptions: An undertaking does not need a licence to engage persons deemed locally qualified if those persons are -
- Engaged on supported employment schemes operated by the Social Security Department, or the Jersey Employment Trust, or any other public body;
- School pupils and students in full time education;
- 65 or over.
Failure to comply with licence conditions may result in prosecution - albeit the Population Office aims to work with businesses as far as possible in resolving issues.
4. Manpower Returns
Every six months, all undertakings are required to complete and provide a manpower return detailing their actual manpower, and vacancies.
This information enables the Population Office to confirm compliance with the licence conditions imposed, and provides valuable employment information for the Island. This information also forms the basis for the annual population estimate for Jersey.
Failure to submit manpower returns may result in prosecution.
5. 1(1)(j) category essential employees
The Housing Law controls the ability to purchase or lease accommodation.
A 1(1)(j) category consent enables an employee to purchase a property through their own specially established company, or to lease accommodation in their employer’s name.
A 1(1)(j) employee is only entitled to remain in occupation in that accommodation so long as they continue to hold a position to which a 1(1)(j) category permission has been granted. Without 1(1)(j) consent, an employee can only enter into lodging arrangements, unless they have their own ‘housing qualifications’.
A 1(1)(j) housing consent will only be granted where it can be demonstrated that a person is essentially employed and housing consent can be justified in the “best interest of the community” given the duty of the Housing Minister to “prevent further aggravation of the housing shortage”. In particular, the following criteria will be relevant:
The criteria against which j applications are assessed:
- The pressure to be placed on the Island’s resources, in particular, its housing stock;
- The need to maintain a balanced and prosperous economy;
- The need to maintain a range of job and training opportunities for locally qualified persons and school leavers, including apprentices, those over normal working age, and people in supported and special employment schemes;
- The importance of the service rendered to locally qualified persons;
- The track record of the undertaking in terms of profitability, and its contribution to tax revenues.
In addition, the Minister may also take into account any other general benefits which the Island may obtain, for example, in relation to past cultural, sporting, or charitable activities, or the potential effects for Jersey’s reputation and interests, including the nature of any actual or potential media coverage.
In making decisions, business plans and financial details may be requested, as may evidence of investing in training locally qualified persons, and having made appropriate efforts to identify suitable local candidates. Applications will be processed more quickly if this information is submitted.
Reference will also be had to previous relevant decisions, in particular, those taken in relation to similar businesses. This will be done to ensure decisions are fair and consistent, and that businesses operate, as a general principle, on a level playing field with their competitors. In doing this, the Minister will nevertheless be mindful that each case presents its own unique range of facts and matters to consider.
(j) category consents are strictly limited, and form a very small proportion of the workforce.
The (j) provision is a recruitment tool, designed to assist employers with recruitment where no satisfactory local person is available. It is not a retention tool, nor an entitlement for having gained a certain professional position. As such, existing employees will not be granted (j) consent, except where some small discretion is exercised as follows:-
- where an employee has been part of an extensive training programme and it would be unfair to point to some distant and different recruitment decision; and/or
- where retention of a specific skill would have disproportionate effect on the business, which for these purposes is taken to include:-
- where a business has a sizeably lower number of js as a proportion of total employees than a comparable business and is in danger of losing some existing key personnel;
- where a business has a significantly disproportionately low number of (‘js’) vis-à-vis its overall size and contribution to the Island;
- very senior posts
The Housing Minister may also restrict consent to the ability to only lease property (and not to purchase property). He will issue these lease only consents having regard to a combination of factors, including the length of the work to be undertaken, and its perceived benefits to Jersey, for example, a short term contract which perhaps has more limited benefits may only justify consent to lease property.
This lease only limitation assists the Minister in supporting business while also managing the impact on the housing market by restricting the ability to purchase property and promoting home ownership for locally qualified persons.
6. The length of a (j) category consent
The following policies are adopted in relation to the length of a consent:-
- Posts which meet the (j) category consent criteria, where the employer is well established, and which require extensive knowledge and experience, will be granted an unlimited (j) category consent on commencement.
- Posts which meet the (j) category consent criteria, and are required for a specific purpose or time limited period, or where the employer is a new start up, may be granted a time limited (j) category consent.
7. Requests for re-consideration
Should an applicant consider a decision unreasonable, or have additional relevant evidence to support his/her application, the Ministers will normally be prepared to reconsider a decision as set out in the published appeal statement.
8. Confidentiality
Information supplied to the Population Office is subject to the Data Protection (Jersey) Law 2005. Information may be sought from States Departments and organisations for the processing of applications and to verify information provided. Applications will be supplied to Jersey Enterprise, which is tasked by the States of Jersey Economic Development Department to grow the economy by assisting Jersey businesses to succeed and encouraging new investment into the Island.
Section 2
1. Practice Note: Delegated Decisions - Regulation of Undertakings and Development Law
This guidance sets out the criteria that enable the Population Office to determine applications without recourse to the Minister for Economic Development.
The delegated functions as approved by the Minister for Economic Development provide the Population Office with authority to grant a licence either unconditionally or subject to such conditions as considered appropriate or, to refuse to grant a licence, except where the application relates to more than 5 permanent non locally qualified staff, and/or more than 15 permanent locally qualified staff (the purpose of this provision being to reserve for the Minister all sizeable staffing decisions). In addition, as a matter of normal practice, those applications that are considered to fall within the below (i) – (iv) parameters will also be referred to the Minister for determination.
- The application is a request for reconsideration in accordance with the published “decision making and appeals process” document;
- The application is for the commencement of an undertaking wholly or partly owned by non-locally qualified persons - excluding those businesses regulated by the Jersey Financial Services Commission that will pay 10% tax – where the impact and prominence is more than minor. Proposed changes to the beneficial ownership of an existing undertaking will be considered under the same criteria as an application for the commencement of an undertaking.
- Applications without precedent and / or those that may be of concern in relation to the Island’s financial and commercial integrity and reputation;
- The application is requesting non locally qualified staff, and is deemed by officers as a marginal decision in that the request is not significantly outside of industry norms, or some strong business case has been made as to why the application requires staffing significantly outside of industry norms;
Where applications are referred to the Minister under the above parameters, the Minister will make decisions having considered the advice of officers, and as a matter of normal practice, having considered the advice of the Migration Advisory Group, being the Minister for Housing, and the Assistant Minister, Chief Minister’s Department.
Each application and case is different – as such, some judgement will be applied when having reference to the above criteria, nor should the above criteria be considered an exhaustive list of those instances where referral to the Minister may take place.
A full list of all decisions taken including those under delegated powers will be presented to Ministers for information on a monthly basis.
Should an applicant consider a decision unreasonable, or have additional relevant evidence to support their application, the Minister will normally be prepared to reconsider a decision, as set out in the published “decision making and appeals process”.
2. Practice Note: Delegated Decisions – Housing Law in relation to (j) category applications
This guidance sets out the criteria that enable the Population Office to determine an ‘in principle’ application for (j) consent under the Housing Law without recourse to the Minister for Housing.
The delegated functions as approved by the Minister for Housing provide the Officers with full authority to grant a consent either unconditionally or subject to such conditions as considered appropriate or, refuse to a consent. The following applications will be referred to the Minister for Housing:-
- The application is a request for reconsideration in accordance with the published “decision making and appeal statement”;
- Applications that may be of concern in relation to the Island’s financial and commercial integrity and reputation;
- The application has limited precedent.
Where applications are referred to the Minister under the above parameters, the Minister will make decisions having considered the advice of officers, and as a matter of normal practice, having considered the advice of the Migration Advisory Group, being the Minister for Economic Development, and the Assistant Minister, Chief Minister’s Department.
Each application and case is different, so some judgement will be applied when having reference to the above criteria, nor can they be considered an exhaustive list of those instances where referral to the Minister takes place.
A full list of all decisions taken, including those under delegated powers, will be presented to Ministers for information on a monthly basis.
Should an applicant consider a decision unreasonable, or have additional relevant evidence to support their application, the Minister will normally be prepared to reconsider a decision, as set out in the published “decision making and appeals process”.
Section 3
1. Practice Note: Temporary Workers
Temporary staff should be covered within an undertaking’s staffing licence. The only exceptions to this relate to –
- The engagement of a temporary worker to cover for existing staff who are sick, on holiday, on maternity leave, etc. In these cases, a vacancy will not be considered to have been created, and as such, the temporary member of staff does not count towards the overall staffing licence allocation.
- The engagement of a temporary worker above the licenced quota to enable training of a new staff member in the event of staff turnover, for a period of 15 days or less, does not count towards the overall staffing licence allocation.
In all other circumstances, the engagement of temporary staff, whether supplied by a recruitment agency or otherwise, requires a licence, and should capacity not exist within the current staffing licence, application is required.
2. Practice Note: Seasonal Staff
Where seasonal staff are engaged for only a specific period in any one year, a staffing licence is required, and specific provision in the staffing licence may be included for the required period.
This provision historically has operated to mainly assist the Agricultural and Tourism industries, but is available for other undertakings which have seasonal requirements.
3. Practice Note: Working From Home
The exemption from the requirement to hold a licence which had prior to June 1998 applied to undertakings carried on by a person with residential qualifications from his/her principal place of residence, on his/her own account and without any employees, no longer applies in respect of new undertakings.
As such, a licence is required for the commencement of an undertaking, whether operated from home or otherwise.
Persons who have carried on an undertaking pursuant to this exemption prior to June 1998 will not be required to obtain a licence for the commencement of the undertaking and will be able to continue to benefit from the previous exemption provision provided the circumstances relating to that undertaking remain unchanged. Application is required for the engagement of staff.
4. Practice Note: Public Sector
The States, by Regulations adopted in 1978, exempted from the Regulation of Undertakings and Development Law “any undertaking carried on by or on behalf of the Crown, the States, or any administration of the States, or any parochial authority.”
In 1999, it was agreed, despite being legally exempt, that the Public Sector would adopt voluntarily the principles of the Law.
5. Practice Note: Construction Industry
The Minister is keen to maintain an efficient and competitive local construction industry, and also to maintain a range of job opportunities for locally qualified persons, in particular, as in other industries, the Minister is keen to promote training and apprenticeships.
A construction business is treated as any other business, other than in respect of the additional ability to obtain a “contract licence” as well as a standard staffing licence. A “contract licence” may be granted in recognition of the nature of the construction industry, in particular, its potential volatility. A “contract licence” enables undertakings to engage temporary staff, on a contract basis only, for the duration of specific contracts
These licences may be granted should the Minister be satisfied that efforts have been made to seek suitable locally qualified individuals.
6. Practice Note: Non Resident Contractors
Permission is required for non-resident contractors or sub-contractors to carry out works within the Island. The Minister’s policy is to grant licences provided that sufficient evidence is produced that local firms have been given the opportunity to tender on a level playing field basis, or that the work to be undertaken is specialist in nature and sufficient evidence is provided that the work cannot be undertaken by local firms. In addition, the Minister may place conditions on the licence as deemed appropriate, particularly in relation to the permitted level and mix of non-locally and locally qualified staff.
In the absence of there being a local registered office address, non-resident contractors or sub-contractors are required to provide details as to the name and position of someone of sufficient seniority or status who would travel to the Island to accept service of a summons if need be.
7. Practice Note: Engagement of Domestic Staff
Households recruiting domestic staff such as housekeepers, gardeners, nurses or carers are not affected by the Regulation of Undertakings and Development (Jersey) Law 1973, as amended, and do not require a licence to engage domestic staff provided those engaged are working solely for an individual household. If, however, the domestic member of staff is working for more than 1 household, that individual is considered to have commenced his/her own undertaking and requires a licence to do so.
Households recruiting nannies are not affected by the Regulation of Undertakings and Development (Jersey) Law 1973, as amended, and do not require a licence to engage nannies provided those engaged are working solely for the household. If, however, the nanny is working for more than 2 households, that individual is considered to have commenced his/her own undertaking and requires a licence to do so.
Undertakings that place staff in households require a licence under the Law.
8. Practice Note: Environmental Considerations
In considering applications under the Regulation of Undertakings & Development Law, regard will be had to a range of factors and each application will be judged on its own merits.
The Economic Development Minister, in making decisions, has regard to “the need to regulate and manage demand on the Island’s resources”, and in doing so, considers the impact a business may have on the environment, and level of migration, should it require to engage non-locally qualified members of staff.
As such, the extent to which a business seeks to minimise its environmental footprint may be taken into consideration when applications are being evaluated, enabling the Minister to take a more favourable approach.
Such considerations include, but are not limited to, car sharing and travel initiatives which reduce congestion on Jersey’s roads, or more efficient practices which reduce demand for energy and local resources from businesses.
In particular, the Minister will have regard to good practices consistent with the “ECO-ACTIVE BUSINESS” initiative, an accreditation scheme for Jersey providing a framework for local business to assist them in having a positive impact on the environment in five key areas:
- Waste
- Water
- Energy
- Procurement
- Transport
ECO-ACTIVE BUSINESS is free to join and applicable to all types and sizes of business - existing members include international businesses and sole traders. Full details of this initiative are available at www.eco-active.je .
Environmental considerations represent one factor taken into consideration by the Minister when making a licensing decision.
Jersey Enterprise is keen to assist businesses in further enhancing their environmental credentials. More information on their services is available at www.jersey.com/enterprise
9. Practice Note: Fulfilment Industry
The fulfilment industry in the Island is a legitimate aspect of commerce but at times has attracted some negative publicity which may have undermined the Island’s good international reputation and integrity. That negative publicity focused on UK companies that switched the distribution of their DVDs/CD’s through the Channel Islands to take advantage of the Low Value Consignment Relief (LVCR - the EU approved mechanism for VAT exemption).
The objective of the Minister is to maximise the benefit of the fulfilment industry while at the same time not damage the Island’s international reputation or integrity.
There are basically two types of activity within the fulfilment sector, although a number of companies operate as a hybrid of the two activities. Whole Chain Companies (WCC) physically buy in and own the stock and sell the goods to the final customers. Third Party Service Providers (3PS) on the other hand provide logistics or distribution services to other retailers. WCC receive revenues based on the total value of sales whilst 3PS only receive revenues based on the service they provide, with the sales revenue going to the retail company.
The high value added per employee and significant tax contribution of WCC activity means that it is fully complementary to the States Strategic Objectives and therefore should be supported by the States wherever possible.
3PS activity contributes less significantly to the States Strategic Objectives and the States should therefore be much more cautious about this type of activity. The very low value added per employee of 3PS activity suggests that the labour could be put to better use in other areas such as tourism and retail. On pure economic grounds the conclusion should be to support WCC activity but not to allow further growth in 3PS activity, where it requires significantly more labour.
The Policy
(i) Existing WCC should be supported, particularly those that are or have been majority beneficially owned by Jersey principals.
(ii) New WCC which are beneficially owned by Jersey principals will be supported.
(iii) With the exception of those companies trading in DVD/CD’s into the UK market, high value hybrid companies should be supported, where they do not involve UK companies diverting current business through the Island.
(v) 3PS activities will be allowed to grow where they do not require significant additional labour and are consistent with Policy.
The Minister will make decisions in line with domestic legislation and policy. However, the Minister will monitor the fulfilment industry and seek to ensure that a level playing field is maintained with other jurisdictions.
Notes
Hybrids are fulfilment related companies that do not fit easily into either category but have a permanent establishment with some or all of their core activities in the Island such as a head office, finance, purchasing, marketing or customer service. Hybrids employ locally qualified people in high value jobs, make a significant local tax contribution and stock is owned and possibly held by the local business. Their pick and pack operations are likely to be carried out by a 3PS but could be done by the company itself. There could also be companies that operate as both WCC and 3PS.
10. Practice note: Treatment of General Partners of Limited Partnerships
Where a general partner of a limited partnership does not directly employ any staff in Jersey and does not exclusively occupy any floor space in Jersey, and benefits from the staff and/or premises of its administrator, being a person licensed to provide administration services pursuant to the Financial Services (Jersey) Law 1998 and licensed pursuant to the Regulation of Undertakings and Development Law (Jersey) 1973, it will be treated as exempt for the purposes of the Regulation of Undertakings and Development Law (Jersey) 1973) under exemptions specified in the Regulation of Undertakings and Development (Jersey) Regulations, 1978. For the avoidance of doubt, such treatment shall not be dependent upon where the business of the limited partnership is being conducted by the general partner.
Nothing in this Practice Note shall be taken to revoke any licence issued under the Law prior to the date of this Practice Note.
11. Practice note: Change of Beneficial Ownership
Persons wishing to sell or purchase an existing undertaking should contact this office in order to establish whether permission is required from the Minister in relation to any transaction or arrangement effecting any change in the direct or indirect beneficial ownership of the undertaking.
Proposed purchasers are advised to contact this office in order to establish the number of staff permitted to be engaged by the undertaking and their locally qualified status. The proposed purchaser may require to apply to the Minister to engage additional staff.
In order for the Minister to consider granting permission for a change to the beneficial ownership of an undertaking, a ‘change in beneficial ownership’ form is required to be completed by the proposed vendor(s) and proposed purchaser(s) (or by their legal representatives).
When a change in the beneficial ownership of an undertaking would effect a change to the shareholding of a limited company and/or a change to the registration of a registered business name, evidence from the Jersey Financial Services Commission should be provided when making application.
Application will be required by the proposed vendor if he/she wishes to commence a new undertaking.
12. Practice note: Hawkers and Non- Resident Traders (Jersey), Law 1965
Non-Resident Traders
It is a requirement of the Law that a person who is not a resident shall not use any place for the purpose of (a) selling or offering or exposing for sale at that place goods brought into Jersey to be sold; or (b) offering for sale, according to samples or catalogues there displayed or otherwise submitted, goods to be brought into Jersey, unless the person is the holder of a non-resident trader’s licence; and the holder of a non-resident trader’s licence shall not sell or offer or expose for sale goods other than goods of the nature specified in his or her licence.
Hawkers
A “hawker” means:-
(a) a person who goes from place to place or from door to door – (i) carrying, or causing to be carried, goods for the purpose of selling or offering or exposing for sale such goods, or (ii) for the purpose of seeking orders for goods to be subsequently delivered;
(b) a person who, in any public place, takes or offers to take a photograph of any other person in that public place with a view to the subsequent sale to that other person of that photograph;
(c) a person who, not being a resident or not having a place of business in Jersey, goes from place to place or from door to door for the purpose of buying or offering to buy goods; and requires a licence of the appropriate class to do so.
Making application
The Parish of St Helier is the authority that grants licences on behalf of the Minister for Economic Development. An application for a Non-Resident Trader or Hawkers licence for the appropriate category shall be provided to the Parish of St Helier not less than 14 days before the day on which the applicant requires the licence to be valid and include the appropriate fee.
Application forms are available from the Parish of St Helier, telephone 01534 811811.
Section 4
1. Regulation of Undertakings and Development Law - decision making and appeals process
Subject to the provision of the Regulation of Undertakings and Development Law, unless granted a licence so to do, no person shall –
(a) Commence a new undertaking;
(b) Increase the number of persons engaged in an undertaking,
If an application is refused or a condition of a licence not accepted, the applicant has the following courses of action:
- If they consider a decision is unreasonable, they should set out in writing why they consider this to be the case with reference to the Regulation of Undertakings & Development Law policy, and the Minister will normally be prepared to reconsider a decision
- If they are able to provide additional relevant evidence to support the application, the Minister will normally be prepared to reconsider a decision, based on such additional information.
The applicant may also request a meeting with the Minister to discuss the application in person.
In reconsidering, the Minister will normally seek the views of:
- Assistant Minister, Economic Development and/or
- Assistant Minister, Chief Ministers’ Department and/or
The Minister will either maintain or amend his decision. The Minister will not reconsider a decision more than once. Where the Minister has delegated authority for the Law, or elements of the Law, to his Assistant Minister, the Assistant Minister will act as the Minister for the purposes of the appeal.
Should an applicant wish to undertake the above course of action, they should write, within 2 months of the date of the decision notice, to the Population Office. Should the applicant continue to be unsatisfied with the decision of the Minister once the above process is complete, the following courses of action remain open:
- Hearing by a Board of Administrative Appeal
An application can be made to the Greffier of the States for the matter to be reviewed by a Board of Administrative Appeal. This procedure can apply to a decision made by any Minister or Department of the States. It is provided by the Administrative Decisions (Review) (Jersey) Law 1982.
If the Greffier of the States, after consultation with the chairman of the Administrative Appeals Panel, considers that the circumstances of the case justify a review by a Board then a hearing will be arranged. This will hear evidence from both the complainant and the Minister. These proceedings are usually relatively informal and although a complainant may wish to present his/her case with the help of an agent or adviser, this is not strictly necessary. After the hearing, the Board will report its findings. If it considers the Minister’s decision to be unreasonable, the Board can request that the Minister reconsiders the decision. It should be noted that the findings of a Board are not binding on the Minister, although the Minister will be required to justify his decision if he decides not to follow the Board’s recommendations.
- Statutory Appeal
Paragraph (7) of Article 6 of the Regulation of Undertakings and Development (Jersey) Law 1973 provides, so far as it is relevant, that any person aggrieved by the decision of the Minister to refuse to grant a licence, to revoke a licence or by any condition attached to the licence, may appeal to the Royal Court.
Such an appeal must be made within 2 months of the date of the notification of the Minister’s decision in the matter, on the grounds that the decision of the Minister was unreasonable having regard to all the circumstances of the case.
3. Judicial Review
If an applicant wishes to challenge the Minister's decision, they are entitled to apply for leave to bring judicial review proceedings. Whether an application would satisfy the judicial review criteria is one on which the applicant should obtain their own independent legal advice. There is no set time for the bringing of an application for leave to apply for judicial review, but an application must set out the grounds for any delay, and delay may be a ground for refusing leave to apply.
4. Subsequent Appeal
A decision of the Royal Court is binding on the parties, subject to the bringing by them of any appeal, doléance, or other challenge. The determination by the Royal Court of a statutory appeal, or of an application for judicial review, are both subject to appeal to the Court of Appeal. Appeals against decisions of the Royal Court taken in administrative appeals are regulated by the Court of Appeal (Civil) Rules 1964. Appeals against decisions of the Royal Court taken in applications for judicial review are regulated by the Court of Appeal (Civil) (Judicial Review) Rules 2000.
Decisions of the Court of Appeal are subject to appeal to the Privy Council.
Copies of all the enactments referred to are available on the Jersey Legal Information Board website, www.jerseylegalinfo.je, or from the States Bookshop, the contact details for which are as follows:
Address: Morier House,
Halkett Place,
St. Helier,
JE1 1DD.
Telephone: 00 44 (0) 1534 441020
Fax number: 00 44 (0) 1534 441098
Email: statesgreffe@gov.je
2. Housing Law - decision making and appeals process
The Housing Law and Regulations provide that every sale or lease of land in the Island must have the prior consent of the Housing Minister.
If an application is refused consent or a condition of consent is deemed unacceptable, the applicant has the following courses of action:
- If they consider a decision is unreasonable, they should set out in writing why they consider this to be the case with reference to the Housing Law and policy, and the Minister will normally be prepared to reconsider a decision
- If they are able to provide additional relevant evidence to support the application, the Minister will normally be prepared to reconsider a decision, based on such additional information.
The applicant may also request a meeting with the Minister to discuss the application in person.
In reconsidering, the Minister will normally seek the views of:
- Assistant Minister, Economic Development and/or
- Assistant Minister, Chief Ministers’ Department and/or
The Minister will either maintain or amend his decision. The Minister will not reconsider a decision more than once. Where the Minister has delegated authority for the Law, or elements of the Law, to his Assistant Minister, the Assistant Minister will act as the Minister for the purposes of the appeal.
Should an applicant wish to undertake the above course of action, they should write, within 2 months of the date of the decision notice, to the Population Office.
1. Hearing by a Board of Administrative Appeal
An application can be made to the Greffier of the States for the matter to be reviewed by a Board of Administrative Appeal. This procedure can apply to a decision made by any Minister or Department of the States. It is provided by the Administrative Decisions (Review) (Jersey) Law 1982.
If the Greffier of the States, after consultation with the chairman of the Administrative Appeals Panel, considers that the circumstances of the case justify a review by a Board then a hearing will be arranged. This will hear evidence from both the complainant and the Minister. These proceedings are usually relatively informal and although a complainant may wish to present his/her case with the help of an agent or adviser, this is not strictly necessary. After the hearing, the Board will report its findings. If it considers the Minister’s decision to be unreasonable, the Board can request that the Minister reconsiders the decision. It should be noted that the findings of a Board are not binding on the Minister, although the Minister will be required to justify his decision if he decides not to follow the Board’s recommendations.
2. Statutory Appeal
Appeals to the Royal Court can only generally be made where a formal application has been made in respect of a specific property, but there can be grounds for a judicial review by the Court. Legal advice needs to be obtained in these cases.
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