Employment Agencies
(Registration) (Code of Conduct) (Jersey) Order 1970[1]
1 Interpretation
In this Order, unless the
context otherwise requires –
“agent” means
a person registered under the Law as a person carrying on an employment agency;
“agent for training”
means an agent who provides training for persons wishing to be employed as
performers in the entertainment industry or as models and who holds out, as an
inducement to persons to avail themselves of the training, a prospect of the
agent’s being able to be of service to them in finding employment as
aforesaid with employers;
“applicant”
means and includes an applicant seeking an employer, an applicant seeking an
employee and a person desiring training;
“employee”
includes an applicant seeking an employer;
“Law” means
the Employment
Agencies (Registration) (Jersey) Law 1969;
“premises”
means the premises used for the purpose of carrying on an employment agency by
a person duly registered under the Law;
“register” means a book, card or form;
“registration fee” means any fee, audition fee,
commission, deposit or monetary payment required or accepted from an applicant
either in connection with the registration of the application or for any
service connected with such application before the applicant has accepted
employment or entered into the situation procured or has been otherwise suited;
“seafarer” means any person who is employed, engaged, or
works in any capacity, on board a ship;
“ship” includes every description of vessel used in
navigation, except –
(a) a
warship or naval auxiliary;
(b) a
fishing vessel;
(c) a
ship which navigates exclusively in inland waters, inshore waters or areas
where port or harbour regulations apply; or
(d) a
pleasure vessel as defined in Regulation 1 of the Shipping (Tonnage) (Jersey) Regulations 2004;
“shipowner” means the owner of a ship, or any other
organization or person having assumed responsibility (including the duties and
responsibilities imposed on shipowners by the Maritime Labour Convention, 2006)
for the operation of a ship on behalf of the owner.[2]
2 Fees
or charges
(1) Subject to paragraph (1A),
an agent shall not demand or receive from any applicant any fee, charge,
deposit, reward or other remuneration unless –
(a) the
agent has previously furnished to such applicant printed or written particulars
of the agent’s fees, charges, deposits, rewards or other remuneration; or
(b) if
the fee, charge, deposit, reward or other remuneration is paid at the premises
by the applicant in person, the agent’s scale of fees, charges, deposits,
rewards or other remuneration is exhibited in such a position that it can be
read by the applicant in that part of the premises in which payment is made,
and an agent shall not demand or receive from any applicant a fee,
charge, deposit, reward or other remuneration greater than that set out in such
printed or written particulars or scale.[3]
(1A) Paragraph (1) shall not apply
in a case where the applicant is a seafarer, and in such a case an agent shall
not demand or receive from the applicant any fee, charge, deposit or
remuneration whatsoever, in whole or in part, directly or indirectly, and in
particular (but without prejudice to the generality of this prohibition) shall
not demand or receive –
(a) any
payment in advance by the applicant towards the cost of repatriation; or
(b) any
fee or charge relating to the preparation or provision of a seafarer’s
employment agreement, except such reasonable cost as may have been incurred by
the agent on the seafarer’s behalf in obtaining or providing any of the
documents listed in paragraph (1B).[4]
(1B) The documents mentioned in
paragraph (1A)(b) are –
(a) a
valid medical certificate;
(b) a
passport or other similar personal travel document (except a visa, the cost of
which shall be borne by the shipowner);
(c) a
document containing a record of the seafarer’s employment (a
“seafarer’s book”),
and for the purposes of sub-paragraph (a), a medical
certificate is valid if it satisfies the requirements as to such certificates
in Regulation 1.2 of the Maritime Labour Convention, 2006.[5]
(2) An agent shall not
substitute for the amounts of remuneration specified in the agent’s form
of application for registration any other fees, charges, deposits, rewards or
other remuneration without first giving notice in writing of the substitution
to the Minister and no such substituted fees, charges, deposits, rewards or
other remuneration as aforesaid shall come into force until they have been
approved by the Minister.
3 Keeping
of separate client account
(1) An agent shall pay all
deposits which the agent receives from applicants into a client account which
shall be used solely for the purpose of such deposits.
(2) Any deposit paid by an
applicant to an agent shall, unless and until forfeited, be the property of the
applicant.
(3) On receipt of a deposit
an agent shall specify on the receipt required to be issued by virtue of Article 5
or 10 and on the carbon copy or counterfoil of such receipt the condition or
conditions on breach of which the agent may claim the deposit to be forfeited.
(4) An agent shall not withdraw
monies from a client account save where and to the extent that a deposit has
been forfeited.
(5) An agent shall keep
books of accounts which the agent shall at all times keep properly written up
and in which the agent shall enter full details of–
(a) all
dealings by the agent with applicant’s deposits and with deposits dealt
with through a client account;
(b) which
deposits are held, received or paid by the agent on account of each separate
client, distinguishing clearly between such deposits and other deposits held,
received or paid by the agent on any other account.
(6) An agent shall keep all
books of accounts containing such particulars as are referred to in paragraph (5)
on the premises for a period of 5 years from the date of the last entry in any
book of accounts.
(7) Nothing in this Article
shall deprive an agent of any recourse or right, whether by way of lien,
set-off, counter-claim, charge or otherwise against deposits standing to the
credit of a client account.
(8) For the purposes of
this Article “deposit” means any payment made to an agent by an
applicant which is neither a registration fee nor a fee to which an agent is
entitled for services rendered prior to the payment of such fee.
4 Advertisements
(1) An agent shall not
advertise a specific situation as being vacant until the agent has taken all
reasonable steps to fill the situation from applicants whose names are on the
agent’s books and who have paid registration fees to such agent, nor
shall the agent advertise the needs of a specific applicant for employment
until the agent has taken all reasonable steps to procure such employment from
employers whose names are on the agent’s books and who have paid
registration fees to such agent.
(2) An agent shall not in
any advertisement, circular, contract or other document issued by the agent or
on the agent’s behalf or by any verbal representation made by the agent
or on the agent’s behalf in connection with the agent’s business,
with intent to deceive, falsely describe the nature, locality or conditions of
any employment or the wages offered in connection therewith or the
qualifications, character, age or experience of or the wages required by any
applicant for employment or make any other representation false in any material
particular regarding any employment or applicant for employment.
4A Recruitment
and placement of seafarers: additional requirements[6]
(1) This Article applies in
relation to agents engaging, or proposing to engage, in recruitment and placement
of seafarers.
(2) Such an agent shall
have, upon application for registration in accordance with Article 3 of
the Law, and shall maintain at all relevant times, sufficient insurance
provided by an approved insurer (or another arrangement having the same effect
as such insurance), and shall, when required, produce evidence of the insurance
or other arrangement to an authorized officer.
(3) For the purposes of
paragraph (2) –
(a) “approved
insurer” has the same meaning as given to that expression by Regulation 8(7)
of the Harbours (Inshore Safety)
(Jersey) Regulations 2012;
(b) “authorized
officer” means an officer duly authorized under Article 10 of the
Law, or such an officer as defined for the purposes of Article 15A by
paragraph (3) of that Article;
(c) insurance
is sufficient if it provides cover compensating a seafarer for monetary loss
incurred as a result of failure by the agent or by a shipowner to meet
obligations to the seafarer under the seafarer’s employment agreement.
(4) An agent shall not
enter into an agreement with a shipowner for the recruitment of a seafarer
unless the requirements of paragraphs (5) and (6) are fulfilled.
(5) The first requirement
mentioned in paragraph (4) is that the agent shall be satisfied that the
shipowner has made sufficient provision, whether by means of insurance or
otherwise and as far as practicable, to protect the seafarer from being
stranded in a foreign port.
(6) The second requirement
mentioned in paragraph (4) is that the agent shall obtain details in
writing of the principal terms and conditions of the seafarer’s
employment agreement, which shall include at least (but need not be
limited to) the following particulars –
(a) the
seafarer’s full name, date of birth or age, and birthplace;
(b) the
shipowner’s name and address;
(c) the
place where, and date from which, the agreement is to be made;
(d) the
post for which the seafarer is employed or engaged and the nature of the
seafarer’s responsibilities;
(e) the
amount of the seafarer’s wages or the formula to be used for calculating
them;
(f) the
seafarer’s entitlement to paid annual leave or the formula to be used for
calculating such leave;
(g) reasonable
provisions as to the term of the agreement and its termination, including the
minimum notice period, and as to repatriation of the seafarer upon expiry or
earlier termination of the agreement;
(h) the
health and social security benefits to be provided to the seafarer by the
shipowner;
(i) the
terms of, or clear reference to, any relevant collective bargaining agreement.
(7) An agent shall not
propose or arrange for the employment, engagement or placement of a seafarer
unless the requirements of paragraphs (8) and (10) are fulfilled.
(8) The first requirement
mentioned in paragraph (7) is that (without prejudice to the provisions of
Article 6(7) of this Order) the agent shall ensure that an applicant is
given sufficient opportunity to examine and seek advice on the draft
seafarer’s employment agreement so that the applicant is able in
particular to understand the rights and duties of the shipowner and the
seafarer under the agreement.
(9) The requirement in
paragraph (8) shall not be taken to have been fulfilled unless the draft
employment agreement provided to an applicant is in English or (by consent
freely given by the applicant) in a language other than English understood by
the applicant.
(10) The second requirement
mentioned in paragraph (7) is that the agent shall be satisfied
that the applicant currently holds all qualifications and competences
required in relation to the post in question.
(11) The requirement in paragraph (10)
shall not be taken to have been fulfilled unless –
(a) copies
of all relevant certificates or other documentary evidence of qualifications or
competences are provided by the applicant; and
(b) the
agent has in place procedures to ensure, as far as practicable,
that –
(i) such certificates
or evidence are up to date and have not been fraudulently obtained, and
(ii) where
such evidence consists of or in part comprises any references from an
applicant’s previous employers, the references are verified.
5 Receipts
for payments or deposits
(1) An agent (other than an
agent for training) shall keep a book of forms of numbered receipts and
counterfoils and shall issue a receipt in respect of every payment or deposit
made by an applicant and shall enter on such receipt and the counterfoil thereof –
(a) the
agent’s trade name and address;
(b) the
date of payment;
(c) the
reference number of the applicant in the register of applications made by
employers or the register of applications made by persons seeking employment;
and
(d) where
the payment is an engagement fee, the nature of the employment in question and
the wages and emoluments attaching thereto:
Provided that a carbon copy of a receipt may be kept instead of a
counterfoil.
(2) Every carbon copy or
counterfoil of a receipt required to be kept under the provisions of paragraph (1)
shall be kept at the premises for a period of 2 years from the date of the
engagement.
6 Employment
of persons outside Jersey
(1) An agent, other than a
theatrical, concert, variety or cinema agent, shall not arrange for the
employment outside Jersey of any person under the age of 16 years unless the
agent is in possession of written information obtained from a responsible person
or society testifying to the satisfactory nature of the proposed employment,
and, if an engagement is made with or in respect of such a person under the age
of 16 years for such employment abroad the agent shall keep such written
information on the premises for a period of 2 years from the date of the making
of the engagement and shall, when required, produce such written information to
any officer duly authorized under Article 10 of the Law.[7]
(2) A theatrical, variety,
concert or cinema agent shall not book any person under the age of 16
years to appear or perform at any theatre, music hall, café or other
similar place outside Jersey or in any cinema film production outside Jersey or
otherwise arrange for the employment outside Jersey of any person under the age
of 16 years, unless the agent is in possession of written information
obtained from a responsible person or society testifying to the satisfactory
nature of the proposed employment and as to the bona fides of the proposed
employer and of any person representing himself or herself as acting for such
employer.[8]
(3) At least 3 days prior
to the departure abroad in pursuance of a booking such as is referred to in paragraph (2)
of a person under the age of 16 years, an agent shall notify the Minister thereof
in writing, stating –
(a) the
name of the person under the age of 16 years;
(b) the
name of the employer;
(c) the
address of the place where such person is to be employed; and
(d) the
name and address of the responsible person or society from whom information
regarding the proposed engagement has been obtained,
and the agent shall keep all such written information on the
premises for a period of 2 years from the date of the making of the engagement
and shall, when required, produce such written information to any officer duly
authorized under Article 10 of the Law.[9]
(4) An agent shall not
propose or arrange for the employment outside Jersey of any person under the
age of 16 years without first obtaining the written sanction of the person’s
parents or lawful guardian (which sanction the agent shall keep on the premises
for a period of 2 years from the date of the making of the engagement and
shall, when required, furnish such written sanction to any officer duly
authorized under Article 10 of the Law) and unless the officer has
satisfied himself or herself that suitable arrangements have been made for the
welfare of such person during the continuance of such employment and for the person’s
return to Jersey on the conclusion of such employment and that such employment
is legal in the country where such employment is to take place.
(5) On making an engagement
with such a person as is referred to in paragraph (4), an agent shall
furnish to the person free of cost a written document containing the provisions
of that paragraph and stating that such provisions have been complied with in
so far as that person’s engagement is concerned.
(6) An agent shall in any
particular case, if so required by the Minister, furnish the Minister with full
particulars of the arrangements referred to in paragraph (4).
(7) An agent shall, in
every case in which the agent arranges for the employment outside Jersey of any
person or for the employment in Jersey of any person resident outside Jersey,
furnish such person free of charge with a copy of the contract or other
document showing the terms and conditions of such employment drawn up in English
or (by consent freely given by the person) in a language other than English
understood by the person and the agent shall keep a copy of such contract or
other document on the premises for a period of 2 years from the date thereof,
and shall, when required, produce such copy, contract or other document to any
officer duly authorized under Article 10 of the Law.[10]
(8) An agent shall, in
every case in which the agent proposes to arrange for the employment outside Jersey
of any person or for the employment in Jersey of any person resident outside Jersey,
obtain evidence of authorization by the prospective employer to act on his or her
behalf and shall keep such evidence on the premises for a period of 2 years
from the date thereof, and shall, when required, produce such evidence to any
officer duly authorized under Article 10 of the Law.
(9) Where a request for
seasonal employment is made by a person resident outside Jersey, an agent
shall, with any reply the agent sends, enclose a copy of the “Notice to
Seasonal Workers who wish to find employment in Jersey” current at the
time.
(10) Nothing in this Article shall
be taken as abrogating the prohibitions against, and restrictions on,
employment of young people as workers on ships imposed by the Shipping (Employment of Young People) (Jersey)
Order 2007.[11]
7 Register
of applications made by employers
(1) Except in a case where
the provisions of Article 9 apply, an agent (other than an agent for
training) shall keep a register of applications made by employers and shall
enter therein particulars of every application as to employment the agent
receives and such particulars shall include the following –
(a) a
reference number against the name of each applicant;
(b) the
date of registration;
(c) the
name and address of the applicant;
(d) the
nature of the employment, including in particular and in accordance with
paragraph (1A), employment as a seafarer;
(e) the
salary, wages or terms offered;
(f) the
amount of any fee paid or payment made by the applicant and the number of the
receipt given for such fee or payment;
(g) the
name of every person seeking employment who is either named to the applicant or
to whom particulars of the employment are given; and
(h) if an
engagement has been made, the name of the person engaged and the reference
number against the name of that person in the register of applications made by
persons seeking employment,
and shall either keep the applications the agent receives in
alphabetical order or keep a correct alphabetical index of such applications.[12]
(1A) An agent engaged in recruitment and
placement of seafarers shall also keep applications kept in accordance with
paragraph (1) in such a manner as to ensure that applications relating to
employment as a seafarer can be readily identified as such.[13]
(2) An agent shall keep the
register containing such particulars as are referred to in paragraph (1)
on the premises for a period of 2 years from the date of each and every
engagement and shall, when required, produce such register to any officer duly
authorized under Article 10 of the Law.
8 Register
of applications made by persons seeking employment
(1) An agent (other than an
agent for training) shall keep a register of applications made by persons
seeking employment and shall enter therein particulars of every application for
employment received and such particulars shall include the
following –
(a) a
reference number against the name of each applicant;
(b) the
date of registration;
(c) the
name, address, age and sex of the applicant;
(d) the
nature of the employment desired;
(e) the
salary, wages or terms desired;
(f) the
amount of any fee paid or payment made by the applicant and the number of the
receipt or receipts given for such fee or payment;
(g) the
names and addresses of all previous employers during the 3 years prior to the
making of the entry and the dates between which the employment or employments
occurred and the nature or character of the employment or employments;
(h) the
name of every employer who is named to the applicant or to whom the name of the
applicant is given; and
(i) the
name of the employer engaging, the date of the engagement, the salary, wages
and terms accepted and the reference number against the name of such employer
in the register of applications made by employers,
and shall either keep the applications the agent receives in
alphabetical order or keep a correct alphabetical index of such applications.
(2) An agent shall keep the
register containing such particulars as are referred to in paragraph (1)
on the premises for a period of 2 years from the date of each and every
engagement and shall, when required, produce such register to any officer duly
authorized under Article 10 of the Law.
9 Agents
acting as employers
(1) Where an agent employs
an applicant seeking employment on the basis of the payment of wages by the
agent to the employee in return for which the employee agrees to work for any person
named by the agent, the agent shall keep a register and shall enter therein the
following particulars –
(a) the
reference number against the name of the employee in the register of
applications made by persons seeking employment;
(b) the
date of the engagement;
(c) the
salary, wages and emoluments paid to the employee;
(d) the
nature of the employment for which the employee will be hired out;
(e) the
remuneration that will be charged by the agent for use of the services of the
employee,
and shall either keep the details in alphabetical order or keep a
correct alphabetical index of such applications.
(2) An agent shall keep the
register containing such particulars as are referred to in paragraph (1)
of this Article on the premises for a period of 2 years from the date of the
making of each and every engagement and shall, when required, produce such
register to any officer duly authorized under Article 10 of the Law:
Provided that where an agent employs an applicant seeking employment
on the basis specified in paragraph (1) of this Article the agent shall
not be required to enter into the register required to be kept by Article 8
such particulars as are set out in Article 8(1)(i) but shall make an entry
specifying that the agent has employed the applicant and stating the reference
number of the entry relating to such employee in the register required to be
kept by this Article.
10 Agents
for training
(1) An agent for training
shall keep a register of applications made to the agent by persons desiring
training and shall enter therein particulars of every application and such
particulars shall include the following –
(a) a
reference number against the name of each applicant;
(b) the
date of registration;
(c) the
name, address, age and sex of the applicant;
(d) the
nature of the training desired;
(e) the
number of lessons to be given and the duration of each lesson;
(f) the
amount of any fee paid or payment made by the applicant and the number of the
receipt or receipts given for such fee or payment;
(g) where
the training is not given by the agent personally, the name, address and
qualifications of the person giving the training; and
(h) where
the applicant is found employment by the agent, the nature of the employment
and the salary, wages and emoluments attaching thereto, the name of the
employer, the date and length of the engagement and the commission payable to
the agent in respect of such employment,
and shall either keep the applications the agent receives in
alphabetical order or keep a correct alphabetical index of such applications.
(2) An agent for training
shall keep the register containing such particulars as are referred to in paragraph (1)
on the premises for a period of 2 years from the date of each and every
engagement and shall, when required, produce such register to any officer duly
authorized under Article 10 of the Law.
(3) An agent for training
shall not in any advertisement or circular issued by the agent or on the
agent’s behalf in connection with the agent’s business, with intent
to deceive, falsely describe the opportunities which an applicant may have for
finding remunerative employment as a consequence of the training given by or on
behalf of such agent.
(4) An agent for training
shall keep a book of forms of numbered receipts and counterfoils and shall
issue a receipt of every payment or deposit made by an applicant for training
and shall enter on such receipt and the counterfoil thereof –
(a) the
agent’s trade name and address;
(b) the
date of payment;
(c) the
reference number of the applicant in the register of applications made by
persons desiring training; and
(d) the
number of lessons to be given and the duration of each lesson:
Provided that a carbon copy of a receipt may be made instead of a
counterfoil.
(5) Every carbon copy or
counterfoil of a receipt required to be kept under the provisions of paragraph (4)
shall be kept at the premises for a period of 2 years from the date of the
engagement.
11 False
entries
An agent shall not make, cause or suffer to be made any false entry
in any register, receipt, or other document required to be kept, furnished,
exhibited, drawn up, prepared or executed in pursuance of this Order.
12 Duty
of agent to reveal pecuniary interest in proposed employment and to act solely
in the interests of applicant
(1) An agent before making
an engagement on behalf of an applicant in employment in which the agent, or
being a limited company, any of its officers, has directly or indirectly any
pecuniary interest, shall give to the applicant a written notice stating such
interest and the extent thereof.
(2) An agent shall keep a
copy of every such notice on the premises for a period of not less than 2 years
from the date of the engagement and shall, when required, produce such copy to
any officer duly authorized under Article 10 of the Law.
(3) An agent shall, in
advising or acting for an applicant, have regard solely to the interests of
that applicant.
(3A) Without prejudice to the generality
of paragraph (3), an agent shall not use any strategy, mechanism or other
means whatsoever to prevent or deter seafarers from obtaining employment in
such capacity for which they are suitably qualified.[14]
(4) For the purposes of
this Article “officer” in relation to a limited company includes a
director, manager or secretary.
13 Duty
of agent not to act to detriment of employers
An agent shall not supply or attempt to supply any employee to an
employer unless the agent has reasonable cause to believe that the employee
intends bona fide to take up the employment concerned and is suitable therefor.
14 Termination
of employment within 2 days of commencement
(1) An applicant who having
accepted employment through an agent terminates such employment within 2 days
of its commencement on the grounds that it is not suitable having regard to the
nature, locality or conditions of the employment or to the qualifications, age
or experience of the applicant shall not be liable to pay to that agent a fee
for being placed in such employment.
(2) An applicant who having
accepted an employee through an agent dismisses such employee within 2 days of
the commencement of the employee’s employment on the grounds that the
employee is not suitable having regard to the employee’s qualifications,
character, age or experience, shall not be liable to pay a fee for the
agent’s services in providing such employee.
15 Complaints:
information to be given to all applicants[15]
An agent shall inform all applicants that complaints of unsatisfactory
agency service may be put before the Minister.
15A Complaints: duty
where complaint relates to recruitment and placement of seafarers [16]
(1) An agent engaged in the
recruitment and placement of seafarers shall inform applicants who are seafarers
that complaints of unsatisfactory agency service may be put before the Minister
or an authorized officer.
(2) Where such a complaint
is made to the agent in the first instance, the agent shall investigate, and
respond promptly to, any complaint of unsatisfactory service in that regard,
and shall inform the Minister or an authorized officer of any such complaint
which remains unresolved.
(3) For the purposes of
this Article, an “authorized officer” includes a person appointed
as an inspector pursuant to Article 154 of the Shipping (Jersey) Law 2002.
16 Statistical
information
An agent shall make available to the Minister, within one month of
being so requested, such statistical information as the Minister may from time
to time consider necessary for the proper execution of the Law.
17 Citation
This Order may be cited as the Employment Agencies (Registration)
(Code of Conduct) (Jersey) Order 1970.