Term Limit Guide - Some highlights from the AS&K guide

Any new work permit granted from 1st April 2001 could only be renewed to a maximum of six years and the six year permit holder will generally not be permitted to remain in Bermuda beyond that time.

Exemptions are possible if the employer has adhered to best practice and can demonstrate that it is a good corporate citizen.

Any work permit which is issued by the Department of Immigration will not be renewed beyond six years. However, the Bermuda Government have deemed that the Department of Immigration will be flexible as to the six year term as they have no wish to deprive a business of continuity and Government recognises that not every job can be filled from the local labour pool.

In some cases a six year term limit will be extended for a further three years to a maximum of nine years.

However, work permit term limits do not apply where an individual can be demonstrated to be key to the business operation.

Additionally, if there are no Bermudians available to fill a term permit holder's position, then there will also be no term limits where the business can demonstrate that it is a good corporate citizen or that the person is key.

A nine year maximum term may be possible but if the employee is key to the operation of the employer, then there are no term limits

Good corporate citizen guidelines

This means:

Actively attracting, recruiting and training Bermudians and demonstrating same.

Reporting on training opportunities provided by the employer for Bermudians.

Produce clear and correct advertisements.

Ensure that applications are completed correctly and submitted with the correct documentation and that the forms are accurate.

The organisation is free of any legal conviction or adverse administrative ruling or final adjudication against the organisation in respect of poor employment/industrial relations practices or Human Rights violations and anything that further enhances the reputation of the organisation as a good corporate citizen.

Business plans - emphasis on development options.

Recognition as meeting standards.

Investors in People or the International Service Organisation Designation

Voluntary development contributions

Scholarships

Support of Bermuda College

Bermuda Career Centre

National Training Board

Bermuda Insurance Institute

Programmes to give Bermudians overseas work experience

Financial support for job related training courses

Key Person - What does it mean?

"Where a case can be made that the required skill sets are not available locally, the work permit holder will be designated as key. Therefore no term limits will be put on the employee's employment in Bermuda unless and until there is a shift which reflects that Bermuda is able to produce, and is in fact producing, the numbers required to sustain the economy." Department of Immigration Work Policies 21st March 2001

To be designated key, one has to show one or more of the below

Among the best practitioners in the world

Rare specialised expertise, not easily found world-wide

Although not particularly specialised, there is a severe shortage of that person's particular skills

Without the key person the organisation will be severally injured to its detriment and to the interests of Bermuda and Bermudians

Crucial business contacts which are critical to the continued success of the business will be lost

Key person is directly responsible for creating well paying jobs to which Bermudians can aspire

Key person is directly responsible for training Bermudians in worthwhile careers and the business.

It is not just CEOs, CFOs and other senior managers who could be designated key to an organisation's business. Any area of work could be considered key- managers, service providers, clerical and administrative employees. In March 2001, the Department of Immigration recognised that the following represented categories which could be considered key

Chartered accountants

Actuaries

Chefs

Registered nurses

Technically skilled specialists in information technology

When does time run?

The six year term limit permit commenced on 1st April 2001. Therefore all new applications for work permits, i.e. for a term of one through five years will be subject to a maximum six year stay in Bermuda.

For existing work permit holders, any time spent prior to 1st April 2001 as a work permit holder in Bermuda will not count towards the six years, but the six years will begin to run from 1st April 2001.

A work permit holder who has left Bermuda and who has accrued six years under the term limit will not be permitted a further work permit unless he has been away from Bermuda for a period of two years.

If the former work permit holder is granted a further work permit having returned to the island after two years, that work permit holder shall have a maximum term limit of a further six years

How can employers prepare?

The provision of a checklist and the setting up of data capturing devices would certainly enable an employer to make a strong case to justify an exemption of the term limit

These matters would include

1. Training plan

* Bermudians

* Non-Bermudian

2. Training record

3. Annual immigration report

* Percentage of non-Bermudians

* Training opportunities offered

* Training opportunities taken up

4. Maintain an advertising register

* Data base of all advertisements run

* What for?

* When

* Response

* Follow up

5. Review policies and procedures regularly

* Make sure ADR provisions are clear in the contract and policies and procedures

* Record of any disputes * Seek advice immediately any issues arise which may suggest HRC complaint or complaint to Inspector

6. Regular review and revision of the business plan/organisational chart

7. Support voluntary development contributions and maintain records of these.

(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)