Business

Work permits and the business traveller

Legal Notes

Stephanie Sterling

Wednesday, April 04, 2012    

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THE Foreign Nationals and Commonwealth Citizens (Employment) Act (“the Act”) governs the requirements for the issuance of work permits in Jamaica. A work permit is issued by the Minister of Labour and Social Security to and in the name of the employee, specifying the name of the employer, and/or the place of employment. The employee must comply with the stipulated terms and conditions of the work permit. The penalties for non-compliance are significant namely, a fine not exceeding $500,000 or imprisonment or both. These are imposed on the employee as well as his or her employer.

The Act and the Foreign Nationals and Commonwealth Citizens (Employment) Exemptions Regulations (“the Regulations”) were amended recently and heralded a number of changes to the work permit landscape consistent with the shifting geopolitical paradigm. Currently, the following persons are now required to obtain a work permit: A foreign national (a person who is not a Jamaican citizen or a Commonwealth citizen or a Caricom national); and a Commonwealth citizen, excluding Caricom nationals who are already in or are coming to Jamaica to exercise rights of establishment, provide services or move capital.

A Commonwealth citizen is defined in the Constitution of Jamaica as including but not limited to citizens of the United Kingdom, Canada, Australia, and New Zealand.

However, it is perhaps the change to the regulations that will most significantly impact the short-term business traveller. Persons within specific categories who conduct business in Jamaica on one or more visits not exceeding 30 days per visit in any calendar year are exempt from the work permit requirement. It should be noted that the aggregate of the visits cannot exceed 6 months in any calendar year. The specified categories of persons are:

• Directors, inspectors and auditors of any company, association, organisation, or body that operates in Jamaica; or controls any company, association, organisation, or body which operates in Jamaica;

• persons who visit Jamaica, on behalf of a principal who is not in Jamaica, in connection with the appointment of, or for the purpose of having business consultations with a business agent or distributor that is based in Jamaica; and

• persons who visit Jamaica to inspect the plant, machinery or equipment of any factory or other industrial works or to give technical advice on the operation of any undertaking, business or enterprise of whatever kind that is based in Jamaica.

It is noted that while some categories are clear in their interpretation, some aspects such as what would qualify as “technical advice on the operation of any undertaking, business or enterprise” are open to varying interpretations. As there is no standardised definition of “technical advice”, this could vary across different industries and could depend on whether the industry lends itself to quantitative as opposed to qualitative advice.

Nevertheless, the short-term business traveller can now reap several cost and time benefits by this change in the law. The world has become a global village and now the short-term business traveller can add Jamaica to his or her itinerary and visit on specified business trips without the cost and time associated with applying for a work permit.

Stephanie Sterling is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial Department. Stephanie may be contacted via stephanie.sterling@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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