GUIDE TO ESTABLISHING AN OFFICE IN BERMUDA

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1 GUIDE TO ESTABLISHING AN OFFICE IN BERMUDA CONTENTS PREFACE 1 1. General 2 2. Real Property Issues 2 3. Immigration, Employment and Associated Issues 3 4. Taxation 8 5. Compliance Conclusion 10 OUR ORGANISATION 12

2 PREFACE This Guide is to assist the reader in evaluating a decision to establish an independent and physical office of a company in Bermuda. It is recognised that this Guide will not completely answer detailed questions which clients and their advisers may have; it is not intended to be comprehensive. If any such questions arise in relation to the contents, they should be addressed to any member of the Corporate & Commercial Department, using the contact information provided at the end of this Guide. Appleby Bermuda October 2013

3 1. GENERAL There is no requirement that an exempted company establish a physical business office in Bermuda. In fact, the vast majority of exempted companies maintain all of their business functions (save of course for their registered offices) outside of the jurisdiction. However, certain companies do want a local office presence; perhaps to strengthen the company s independence, or to demonstrate that the mind and management of the company is in Bermuda. This Guide addresses the issues that arise when an exempted company seeks to establish a physical office in Bermuda. 2. REAL PROPERTY ISSUES Exempted companies are not permitted to hold an absolute or freehold interest in real property or land in Bermuda. As a general rule, only a local company is permitted to acquire such an interest in land. In the event that an exempted company wished to purchase land or physical premises, it would need to seek special permission from the Government through the medium of a private Act of the Legislature. The remainder of this section considers leasehold interests and issues arising from them. Exempted Companies An exempted company may enter into a lease or tenancy agreement in respect of: land bona fide required for its own business purposes for a term not exceeding 50 years without any form of consent; residential property for a term not exceeding 21 years, provided that such property is required for the purpose of providing accommodation or recreational facilities for the company s officers or employees and provided that the company obtains the Minister s prior written consent; and designated tourist accommodation or hotel residence for a term not exceeding 131 years, if the exempted company has a physical presence in Bermuda and provided that the company obtains the Minister s prior written consent. In order to avoid contravening the Companies Act 1981 (Companies Act), a company should ensure that any premises are used strictly for the stated purpose. If, for example, the premises are obtained on the basis that they will be used for the company s own business purposes (i.e. to provide office space), then (subject to what follows below) a company should not in turn enter into any sublease in respect of the premises with another party. The penalty for contravening the Companies Act, or any related permits or consents, includes criminal liability for a company as well as for its directors or officers, the escheat of the property to the Crown and the revocation of relevant permits or consents. 2.1 Subletting It is important that an exempted company, as tenant, carefully plans its space requirements over the duration of a lease because of the legal issues surrounding subletting or space-sharing arrangements. Any subletting or space-sharing arrangements (even on a one-off basis and where there is no profit element) are viewed by the Government as carrying on business in Bermuda which is not permitted by an exempted company. Therefore, before entering into such an arrangement, a company should obtain a licence issued by the Minister. Licences to sublet or space-share an office are generally granted for not more than five years and relate to specific premises and may include certain conditions. One applebyglobal.com 2

4 common condition is that the tenant may not make a profit from the subletting. The Minister can unilaterally withhold consent without giving a reason. If a company is interested in subletting or spacesharing, it is advisable to seek local legal advice at the earliest possible opportunity. 2.2 Contracted Office Space It is possible for an exempted company to enter into a contract with an existing business in Bermuda, such as our associated service company, Appleby Services (Bermuda) Ltd., for the purposes of obtaining, by lease, a more limited amount of office space than might be commercially available such as a couple of offices. It should be noted that a facility of this nature could provide for the supply of a certain amount of office equipment, such as basic furniture, computer equipment, servers, terminals etc. are not likely to be included in a commercial arrangement. 2.3 Individuals and the Acquisition of Land Non-Bermudian employees and officers of an exempted company will require a licence to acquire land. A licence is also required by a non-bermudian in order to enter into any lease or tenancy agreement for a term extending beyond five years or having a right of renewal which might extend the term beyond this period. Any document entered into in contravention of this requirement will be void. In the event that an employee or officer of an exempted company might be interested in acquiring a long-term interest in land, local advice should be sought in this complex area. 3. IMMIGRATION, EMPLOYMENT AND ASSOCIATED ISSUES 3.1 The Employment Act The principal statute governing employment relations is the Employment Act 2000 (Employment Act) which sets out minimum prescribed requirements that must be observed by a company as an employer. The following is a summary of the responsibilities of an exempted company as an employer within Bermuda s current regulatory environment. 3.2 Statement of Employment Under the Employment Act, an employer must provide a Statement of Employment (Statement) to each of its employees. The Statement must contain: the full name of the employer and employee; the employee s commencement date; the job title and brief description of the employee s job; the place of work; the gross wage, including the method of calculating it and pay periods; normal days and hours of employment; holiday entitlement, including public holidays; terms relating to incapacity for work through sickness and injury; length of notice the employee must give or receive with respect to termination; details of any pension provided; disciplinary/grievance procedure; applebyglobal.com 3

5 the duration of employment/whether it is intended to be permanent; any probationary period; and dress codes. If there are no particulars regarding the last four points, that fact should be noted in the Statement. It should be noted that the Statement is not a contract of employment. For the sake of good order and the protection of the employer and employee, we recommend that a contract of employment be entered into clearly setting out the contractual terms of the relationship. Vacations Under the Employment Act, each employee is entitled to two weeks of paid annual vacation after one year of continuous employment. Further, an employee is entitled to a week s remuneration for each week of annual vacation. Such remuneration must be paid in advance of the vacation, if so requested. Sick Leave An employee who has completed at least one year of continuous employment is entitled to be paid at his normal hourly rate in respect of eight days per year when he is unable to work as a result of sickness or injury. Further, the employee is not entitled to be paid in respect of a period of two or more consecutive days unless he provides his employer with a certificate from a registered medical practitioner upon the request of the employer. Ante-Natal Care A pregnant employee who, upon the advice of a medical practitioner, makes an appointment to receive ante-natal care is entitled to time off to attend the appointment. Upon the request of the employer, the employee must produce a certificate from a registered medical practitioner confirming her pregnancy, and an appointment card confirming the appointment. If the employee has completed one complete year of employment, she is entitled to her normal hourly wage in respect of any such absence. Maternity Leave An employee shall be entitled to maternity leave if she provides her employer with a medical certificate certifying that she is pregnant and specifying the estimated date of birth. Leave consists of eight weeks paid leave and four weeks unpaid leave. The employee must also submit her application for maternity leave at least four weeks before the day on which she intends to commence leave. Once the employee has completed at least one year of continuous employment or will have done so by her expected date of delivery, the employee is entitled to 12 weeks maternity leave. In the event that the employee has not completed one year of continuous employment prior to her expected date of delivery, her only entitlement is to eight weeks unpaid leave. It should also be noted that the employee who has taken a period of maternity leave must notify the employer at least two weeks in advance of the resumption of work. She is entitled to resume work in the position she occupied previously, or in a comparable position offering at least the same remuneration and benefits with no loss of seniority. applebyglobal.com 4

6 Bereavement Leave The employer must grant the employee a leave of absence of up to three consecutive days upon the death of an immediate family member or five consecutive days to attend a funeral of such an individual overseas. Bereavement leave may be unpaid. Termination of Employment Under the Employment Act, an employee can be terminated if proper notice has been given and if there is a valid reason connected with the employee s ability, performance or conduct or the operational requirements of the business. The Employment Act does provide that the employer can, at its discretion, pay an employee in lieu of giving the proper notice. By way of guidance, where an employee is paid monthly, the minimum statutory notice period is one month. However, it is not uncommon for statements of employment and employment contracts to specify a longer notice period. There are certain circumstances where an employee can be terminated without notice or payment in lieu of notice. This includes dismissal for serious misconduct, repeated misconduct and unsatisfactory performance. Examples of serious misconduct might be acts of dishonesty, corporate espionage, etc. In relation to repeated misconduct, the misconduct must be short of serious misconduct (which would entitle the employer to dismiss summarily) and must occur at any time within six months of a written warning having been issued to the employee. The written warning must give specific instructions on how the unsatisfactory performance may be improved. In cases of repeated misconduct and unsatisfactory performance, if there is no such transgression by the employee within six months of the initial warning, then the initial warning becomes inoperative. Therefore, a subsequent act of repeated misconduct, for example, seven months after the first, starts the process anew. Other Legislation Bermuda does have trade union legislation, but this is not considered relevant to most exempted companies as it is not anticipated that an exempted company setting up operations in Bermuda would be unionised. Work Permits Every non-bermudian employee requires a work permit, which is issued by the Department of Immigration. In general, non-bermudians will only be granted a permit when no suitably qualified Bermudian, Permanent Resident Certificate (PRC) holder or spouse of a Bermudian seeks the position. In order to determine whether there is a suitably qualified Bermudian, PRC holder or spouse of a Bermudian available for the position, the employer is required to advertise the position locally for three consecutive days. The cost of a permit depends on the type of permit sought and the period for which it is issued. Please enquire for the current schedule of fees. The types of permits are summarised below. Fixed Term Permit A company may make an application for a fixed term work permit to employ a non-bermudian for up to ten years, with a three year permit being the most common. The application for a fixed term permit can only be made while the individual to be employed is out of Bermuda (save in certain exceptional circumstances, for example if the individual is already in Bermuda on a temporary permit). This process applebyglobal.com 5

7 usually takes up to four weeks from the date of submission of the application, but in cases where additional information or clarification is required the process may be extended. New Business Permits A new business permit allows an exempted company that is new to Bermuda to receive up to five work permits for overseas recruits for senior positions within that new company. The employees must earn at least $125,000 per annum and advertising for these five positions will be waived within the first 12 months of establishing a physical presence in Bermuda. Expedited or Temporary Permit There is a procedure currently in place which allows a company to obtain a temporary permit in respect of an employee on an expedited basis. A temporary permit is valid for three months, and upon expiry can be extended for a further three months. The process takes up to ten days to process. There is no obligation on the Government to grant a full permit merely because a temporary permit has previously been granted. Landing Permit If an employee must travel off island but no decision has yet been made on his work permit (if expired) it is possible to obtain a landing permit. Periodic Permit A periodic permit may be issued to a company to allow the employment of an individual who is then allowed to enter Bermuda any number of times during the validity of the permit. Such a permit is generally issued to individuals who are required to pay periodic working visits of a few days or a few weeks at a time to Bermuda. The person working in Bermuda on a periodic permit is not a resident but a visitor. Normally, a person entering Bermuda on a periodic permit is given permission to stay for 21 days. If the individual is required to be in Bermuda for a longer period, an application must be made in the usual way to the Department of Immigration for a visitor s extension. Usually, such permits are granted to a specific employer to hire a person in a particular job and can be obtained for a periods of up to five years. However, it is nonetheless quite normal for back-to-back annual periodic permits to be applied for and granted. Representative Permit (Blanket Periodic Permit) This type of permit is useful for representatives of overseas companies who are under a contractual obligation to the Bermuda employer to maintain or provide a service. The terms and cost of a Representative Permit are the same as a Periodic Permit with the key difference being that it facilitates those cases where the representative may not always be the same person. Usual Fixed Term Work Permits Application Procedure The following documents must accompany the Bermuda Immigration and Application Form: employment and training references from current and previous employers or training and education institutions; four passport type photographs with the name of the applicant written on the back; a certified copy of passport; applebyglobal.com 6

8 a medical certificate of good general health (for the applicant and any accompanying dependants); a full size (not miniature) chest x-ray plate (CD x-rays are acceptable) (for the applicant and accompanying dependants 12 years of age or older); character references (not less than two) from persons of good standing in their community (e.g. professionals); a police certificate; a signed copy of the statement of employment; certified copies of certificates of qualifications; the applicant s resumé; repatriation letter; copy of advertisement (if applicable); for new companies a certificate of incorporation and business plan; and requisite government fee (details available on request). A permit holder may wish to be accompanied to Bermuda by a spouse or significant other. Where this is the case, the Department of Immigration will require detailed information with respect to the spouse or significant other to be included in the original application. Frequently, the spouse or significant other will not work in Bermuda, and approval of a permit holder does not include approval for the spouse or significant other to seek employment. The applicant must provide the following information to the Department of Immigration with respect to a spouse: a certified copy of the marriage certificate; medical certificate; chest x-ray; two character references; four passport sized photographs with the spouse s name written on the back; certified copy of passport or official photo ID; a police certificate; repatriation letter to include spouse; and letter of undertaking signed by applicant and spouse. The Department of Immigration also has a policy of granting permits to an unmarried individual who is accompanied by a partner, including a partner of the same sex. The usual condition under which the partner is allowed to reside in Bermuda is that the relationship continues and that the partner on a work permit undertakes to be financially responsible for his or her partner. In the event that the relationship ends, the Department of Immigration will insist upon the dependant partner s departure from Bermuda. With respect to an unmarried partner, similar identification documentation and references must be submitted. In addition, the Department of Immigration will require a letter from the employer pertaining to health insurance coverage, and a letter from the domestic partner confirming that the parties are living together and that the permit holder will be responsible for all of the partner s costs and expenses in Bermuda, and that in the event the relationship should end, the permit holder guarantees applebyglobal.com 7

9 that he or she will leave Bermuda and that the permit holder will bear all costs and expenses of her partner s repatriation. The letter must be signed by both the applicant and the domestic partner. The Department of Immigration will also require proof of accommodation (either in the form of a copy of a rental agreement or a letter from the landlord). The Department of Immigration has a policy of allowing only two dependent children to accompany a couple to Bermuda. The expressed rationale for this is that Bermuda has such limited resources, with limited space in schools and heavy demands on housing and other infrastructure. However, for non- Bermudian married couples with more than two children, the Department of Immigration will consider applications if the work permit holder earns more than $140,000 per annum. Waiver from Advertising The Minister, on occasions, will waive the requirement to advertise. These exceptions are cases in which the only person suitable to carry out the role is a person currently with the company, who has the requisite knowledge of the company that is required and no suitable Bermudian would be able to fulfil the role or they have a specific talent or expertise that a Bermudian will not have (i.e. the requirement to speak a certain language or a rare technical skill). Automatic waivers will normally be granted for CEO and other chief officer posts. Human Rights Act 1981 The Human Rights Act 1981 (Human Rights Act) provides that it is unlawful to discriminate against persons on any of a number of bases. For the purposes of the Human Rights Act, a person is deemed to discriminate against another person if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to the other persons because: of his race, place of origin, colour or ethnic or national origins; of his sex or sexual orientation; of his marital status; of his disability; he was not born in lawful wedlock; she has or is likely to have a child whether born in lawful wedlock or not; or of his religion or beliefs or political opinions; or of his criminal records, except where there are valid reasons relevant to the nature of the particular offence for which he is convicted that would justify the difference in treatment. 4. TAXATION Payroll Tax Act 1995 Under the Payroll Tax Act 1995 (Payroll Tax Act), subject to certain exceptions set out below, payroll tax is payable by all employers and calculated according to total remuneration paid to employees for services performed wholly or mainly in Bermuda. applebyglobal.com 8

10 For the purposes of the Payroll Tax Act, remuneration includes all wages and benefits paid to employees such as salaries, leave pay, commissions, bonuses, housing allowance, redundancy payment, money paid under a profit sharing scheme and stock options. Employer contributions under the Contributory Pensions Act 1970 (Contributory Pensions Act), the Health Insurance Act 1970 (Health Insurance Act) or under an approved health insurance, hospital, life insurance or retirement scheme are not considered remuneration and therefore are not subject to taxation. However, as employer contributions to schemes which have not been approved by the Minister are considered to be taxable compensation, employers must submit these schemes to the Tax Commissioner for review to ascertain whether contributions to such schemes will be taxable. A person will not be an employee for the purposes of the Payroll Tax Act if (i) he is under 16 years of age, (ii) he is employed for 16 hours or less in any one calendar month, or (iii) he is ordinarily employed outside Bermuda and his period of employment in Bermuda does not exceed four consecutive weeks. The tax period is deemed to be each calendar quarter and the employer must file and pay a return within 15 days of the end of every tax period. Penalties are incurred for failure to do so. Every new employer must register with the Tax Commissioner s Office within seven days of the end of the first tax period in which the employer commences business. Employers must keep records for at least five years to show that they are complying with the law. The Tax Commissioner may require employers to furnish information at any time to enable him to verify the returns submitted. Tax Relief Payroll tax is payable on the total compensation paid to employees up to a certain maximum. The salary declaration cap has the benefit of reducing the impact of double taxation for those employees who are subject to world-taxation on their income (e.g. US citizens). Special relief from payroll tax is available in certain circumstances. Benefits Compulsory employment benefits under Bermuda law include: (i) social insurance, which is effectively a Government administered contributory pension scheme, and (ii) hospital insurance whereby an employer must meet a minimum standard in providing insurance for its employees. Social Insurance Under the Contributory Pensions Act, liability for contributions to social insurance is split evenly between the employer and employee. Payments made can be transferred overseas for the future benefit of a returning overseas resident. Health Insurance The Health Insurance Act makes provision for both compulsory and voluntary hospital insurance. Every employer of 100 or more persons is required to provide health insurance in respect of hospital treatment for an employee, (and the employee s spouse should he or she not be employed), under a scheme of health or hospital insurance which is an approved scheme. Details of any proposed scheme must be submitted to the Minister and, if he is satisfied that the proposed scheme provides not less than full standard hospital benefit, approval shall be given subject to conditions the Minister may impose. applebyglobal.com 9

11 An employer is responsible for payment of the total premium due under any contract of insurance effected in respect of an employee, but is entitled to deduct up to one half of the premium payment from an employee s pay. Bermuda legislation allows for an employee of an exempted company to maintain an overseas health insurance plan in addition to maintaining the minimum full standard hospital benefit with a licensed insurer. The terms of the contract of insurance will likely determine whether an overseas health insurer will pay benefits to a policyholder for medical treatment received by that policyholder while he was resident in Bermuda. Further, Bermuda s hospital and medical services would not be under any obligation to accept payments from an overseas health insurer, and whether that insurance coverage is accepted is likely to be determined by medical facilities in Bermuda on a case by case basis. Pensions The National Pension Scheme (Occupational Pensions) Act 1998 sets out the requirements to be followed in establishing a pension fund for all employees. All employers are required to establish and register a pension plan for all Bermudians or the spouse of Bermudian employees who are over the age of 23 years and work more than 720 hours of employment in any calendar year. Employees may either establish and maintain the pension plan themselves, or they may participate in a Financial Institution Pension Plan. Employers and employees will each be required to contribute 5% of the pensionable earnings of the employee to the pension scheme. All Bermudian employees must be included in a pension scheme. Work permit holders may be included in a pension scheme, but their participation is not compulsory. 5. COMPLIANCE Bermuda has a complete anti-money laundering and anti-terrorist financing (AML/ATF) legislative scheme. Minimum basic AML/ATF policies and procedures required to be maintained by certain businesses in Bermuda. These AML/ATF policies and procedures need not be elaborate but should provide an employee with an avenue through which to report any suspicion that the Company may have become involved in any AML/ATF activity. They must also include customer due diligence measures. 6. CONCLUSION Appleby is a full service law firm with the necessary expertise to advise on all aspects of establishing an office in Bermuda, including corporate, property, immigration, employment and compliance matters. We are able to advise in relation to any legal issues involved in registration for tax purposes, and concerning the application of Bermuda taxes to an exempted company. Additionally, Appleby Management (Bermuda) Limited, our associated service company, can assist in the completion of requisite forms and registration for tax, pension and other purposes, and can deal with payroll preparation, accounting and all other aspects of the management of a local office. applebyglobal.com 10

12 For more specific advice on establishing an office in Bermuda, we invite you to contact one of the following: Bermuda Timothy Faries Partner, Group Head, Bermuda Corporate & Commercial Carol Feathers Managing Director, Bermuda Fiduciary & Administration Scott Swainson Partner, Group Head, Bermuda Property Michael Hanson Senior Associate, Bermuda Litigation & Insolvency Kiernan Bell Managing Partner, Bermuda Litigation & Insolvency applebyglobal.com 11

13 OUR ORGANISATION Appleby is one of the world's largest providers of offshore legal, fiduciary and administration services. With an unparalleled presence in the key offshore jurisdictions of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Isle of Man, Jersey, Mauritius and the Seychelles, the group offers advice on offshore law and provides fiduciary and administration services. We also have offices in four international financial centres of London, Hong Kong, Shanghai and Zurich. Over 770 lawyers and professional specialists deliver sophisticated, specialised services, primarily in the areas of Corporate and Commercial; Litigation and Insolvency; Private Client and Trusts; and Property. We advise global public and private companies, financial institutions, and high net worth individuals, working with them and their advisers to achieve practical solutions, whether in a single location or across multiple jurisdictions. This publication is for general guidance only and does not constitute definitive advice Appleby Global Group Services Limited 2013 applebyglobal.com 12