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1 .ÌýThe Fair Work Agency (FWA) protects workers from exploitation in agriculture, horticulture, shellfish gathering and food and drink processing and packaging. FWA operates a licensing scheme for those acting as a ‘gangmaster’.ÌýThe term gangmaster is defined inÌý. This document explains how FWA makes licensing decisions.Ìý

Gangmasters licensing teamÌý

2 .ÌýThe gangmasters licensing teamÌýis responsible forÌýmaking any decision in relation to a licence. This includes whether to grant a licence, impose conditions on a licence, refuse, suspend or revoke a licence.Ìý

3 .ÌýLicence decisions are evidence-based. This evidence may be gathered from inspections, as well as from information shared with FWA by other government departments and enforcement agencies (including the police and authorities in other countries).Ìý

The FWA licensing standards and the inspection processÌý

4 .ÌýApplicants and licence holders mustÌýcomply withÌýFWA’s licensing standards for gangmastersÌýto be granted and to keep a licence.Ìý

5 .ÌýFWA inspections may be conducted as part of the application process or after a licence has been granted. The inspection will test the relevant licensing standards.Ìý

6 .ÌýDuring an inspection, an applicant or licence holder may be asked to give details of any current contracts with clients. The inspection may include visiting clients’ premises to check the place of work, interviewing workers and requests for documentation to check compliance.Ìý

7 .ÌýThe inspector will explain the inspection process and provide applicants and licence holders an opportunity to comment on any identified compliance issues. The inspector does notÌýmake a decisionÌýat the end of the inspection. Instead, the findings of the inspection will beÌýsubmittedÌýto the licensing team after being quality controlled to check the consistency of the evidence reported. The inspection report will detail any identified non-compliances with the Standards.ÌýRead more about what happens at an inspection.Ìý

8 .ÌýThe licensing team may conduct its own enquiries with a licence holder or applicant without the need for a physical inspection whereÌýappropriate. In these circumstances the licensing team will write to the licence holder or applicant directly outlining the informationÌýrequired.Ìý

Making a decisionÌý

9 .ÌýIn making any decision which affects a licence, the licensing team will review all relevant information toÌýdetermineÌýwhether the business is compliant with the licensing standards. This may include:Ìý

• the inspection report (where an application or compliance inspection has been conducted), as well as any other evidence that has beenÌýsubmittedÌýor obtained in support of the inspectionÌý

• information received from other government departments and agencies (including the police and authorities in other countries)Ìý

• informationÌýsubmittedÌýby applicants or licence holders (including when a licence is being renewed)Ìý

10 .ÌýAs part of the licence decision process, the licensing team may write to an applicant or licence holder and request further information.Ìý

11 .ÌýThe licensing team may also make an interim licence decision. Where an interim licence decision is made, the licensing team will outline its provisional conclusions where it considers a licensing standard or standards to have been failed. A request will be made for an explanation and/or supporting evidenceÌýin order forÌýthe matter to be considered further.Ìý

12 .ÌýAn interim licence decision is not the final decision of the licensing team. FWA will reviewÌýall ofÌýthe relevant information and evidence provided prior to making its final licence decision.Ìý

13 .ÌýThis evidence is used toÌýdetermineÌýthe business’s level of compliance with the licensing standards. Each standard has an associated points score. The scoring systemÌýdeterminesÌýwhether the applicant or licence holder is compliant with the licensing standards. The review by the licensing team will result in an overall score.Ìý

14 .ÌýStandardsÌýdesignatedÌýas ‘critical’ are worth 30 points. All other standards are worth 8 points, except licensing standard 1.4 which can score up to 16 points and licensing standard 2.5 where either 8 points or 30 points can beÌýaccruedÌý(with a maximum of 30). There are 3Ìýpossible outcomes:Ìý

1. No issuesÌýidentified.Ìý

2. Inspection score below 30 points.Ìý

3. Inspection score 30 points or more.Ìý

No issuesÌýidentifiedÌý

For applicants, a licence will be granted. There would be no change for existing licensing holders.Ìý

Inspection score below 30 pointsÌý

Additional Licence Conditions (ALCs) will be attached to the licence. An ALC is a specific requirement which a licence holder mustÌýcomply with. Usually, ALCs will be against individual non-critical standards where non-compliances have beenÌýidentified. The licence will become conditional on those non-compliances being corrected. The decision letter will explain what measures need to be taken to rectifyÌýidentifiedÌýnon-compliances.Ìý

Inspection score 30 points or moreÌý

The application or licence will usually be refused or revoked. However, FWA may consider attaching ALCs where it is proportionate to do so after considering the extent and nature of the non-compliance.Ìý

15 .ÌýFWA will also usually refuse applications where it is proportionate to do so in the following circumstances:Ìý

• If an applicant, proposed Principal Authority (PA) and/or any person named or specified in the application has been found not to be fit and proper. This applies for at least 2 years from the date of that decision.Ìý

• Where an applicant, proposed PA and/or any person named or specified in the application has been refused or revoked twice within a 2-year period. This applies for at least 2 years from the date of the second decision.Ìý

16 .ÌýFWA will consider automatically refusing an application in the following circumstances:Ìý

• If an applicant, proposedÌýPAÌýand/or any person named or specified in the application is found to have been connected to someone who has beenÌýdeemedÌýnot to be fit and proper. This applies for at least 2 years from the date of the fit and proper decision.Ìý

• Where an applicant, proposed PA and/or any person named or specified in the application is found to have been connected to someone who has been refused or revoked within a 2-year period. This applies for at least 2 years from the date of the fit and proper decision.Ìý

17 .ÌýParagraphs 15 and 16 apply if standards 1.1 and 3.1 have been failed. These paragraphs will also apply if standards 3.2 and 3.3 have been failed where forced labour has beenÌýidentified. This policy will apply unless exceptional circumstances can beÌýdemonstratedÌýto justify why the application should be considered on its own merits.Ìý

Refusing an applicationÌý

18 .ÌýWhere a decision is taken to refuse an application, the businessÌýhas the opportunity toÌýrequest a review of the decision within 10 working days if it believesÌýfactual informationÌýused to make the decision is incorrect. The licensing team will review its decisionÌýin light ofÌýany factual evidence provided. Corrective action taken after the original decision will not beÌýtaken into account. There is a still a right to a formal appeal if the review of the decision confirms the application should be refused.Ìý

Revoking a licenceÌý

19 .ÌýLicences may be revoked with or without immediate effect. A revocation with immediate effect means the business must stop acting as a gangmasterÌýimmediatelyÌýor within 5 working days from the date of the decision. This is regardless of any appeal that may be made.Ìý

20 .ÌýWhere a business is revoked without immediate effect it must stop acting as a gangmaster 21 working days after the date of that decision. A business can continue acting as a gangmaster during any appeal process if a licence is revoked without immediate effect and an appeal is made within 20 working days after the date of that decision.Ìý

21 .ÌýThe licensing standards specify which ‘critical’ standard may lead to a licence being revoked with or without immediate effect. A licence revoked without immediate effect may be upgraded to with immediate effect should new evidence beÌýidentifiedÌýwhich justifies such a response.Ìý

22 .ÌýIn all cases, the applicant or licence holder will be notified in writing outlining FWA’s decision. This will include an explanation of what evidence the decision is based on. Where evidence of compliance has been requested but not produced, the licensing team may regard this as being non-compliant on grounds that the business is not fit and proper. Unlike refusals of licence applications, there is no pre-appeal process for revocations or suspensions of licences.Ìý

Suspending a licenceÌý

23 .ÌýIn cases where the evidenceÌýindicatesÌýthat a licence is likely to be revoked with immediate effect but there may be a delay in making the decision, FWA will consider suspending the licence for a determinedÌýperiod of time. This action will be considered in exceptional circumstances where there is an identified need to urgently stop a business from acting as a gangmaster for example for worker protection.Ìý

24 .ÌýIf a licence is suspended, FWA will write to the business concerned explaining what action has been taken and confirm the period for which the licence will be suspended. FWA will normally make a formal licence decision before the end of the suspension period. If that is not possible, FWA will write to the business again explaining whether the suspension will be extended or not. If the suspension is to be extended the further period will be confirmed.Ìý

Proportionality in decision makingÌý

25 .ÌýFWA adopts a proportionate approach when applying the licensing standards. FWA is concerned withÌýidentifyingÌýthe more persistent and systematic exploitation of workers rather than concentrating on isolated non-compliances, unless such a non-compliance is ‘critical’ in its own right.Ìý

26 .ÌýIn reviewing information gathered by an inspection, from a request by the licensing team or other source, the licensing teamÌýseekÌýto make sure that there is sufficient and reliable evidence toÌýdemonstrateÌýthat there is a reasonable likelihood of systematic failure with the standard. Therefore, isolated incidences of non-compliance with non-critical standards may be discounted from the final licensing standards score. In addition, the licensing team will review the failed standards to ensure that there is no ‘double counting’,Ìýwhere 2 or more standards may have been failed for the same reasons.Ìý

Other factors that affect a licence decisionÌý

27 .ÌýThere may be further circumstances which may prompt the licensing team to make a decision that affects a licence. This includes:Ìý

• ejecting or refusing an applicant should the applicant not provide requested informationÌý

• removing a licence holder from the public register if they cannot be contacted or there is evidence that the legal entity ceases to existÌý

Right of appealÌý

28 .ÌýThere is a right of appeal against any decision by FWA to:Ìý

• refuse an application for a licenceÌý

• attach conditionsÌý

• suspend or revoke a licenceÌý

• refuse the transfer of a licenceÌý

29 .ÌýDetails of how to appeal will be included in the decision letter. The licensing team will reviewÌýnew informationÌýthatÌýcomes to lightÌýas part of an appeal if it brings into question the original decision.Ìý

Expired licencesÌý

30 .ÌýThe renewal of the licence is the responsibility of the licence holder. This is regardless of whether the business has or has not received a renewal notice. Steps and systems should be put in place by the licence holder to ensureÌýa timelyÌýrenewal.Ìý

31 .ÌýThe licence holder will receive an automated notification via email 6 weeks before the renewal date, reminding them their licence is due for renewal. A second notification is issued via email, if there is no response to the first reminder. If the licence is not renewed in time, the business will be informed via email the licence has expired. It is important that the business updates FWA of any changes to contact details as per Standard 1.4.Ìý

32 .ÌýIt is a criminal offence under section 12 of the Gangmasters (licensing) Act 2004 to act as a gangmaster without a licence. Labour users who have subscribed toÌýÌýwill be notified that the licence has expired.Ìý

33 .ÌýA new licence must be applied for and be granted before the business is authorised to act as a gangmaster again. Any new application may be subject to a further inspection and checks with other authorities.Ìý

Labour Market Enforcement Undertakings (LMEU) and Orders (LMEO)Ìý

34 .ÌýWhere a business applies for gangmaster’s licenceÌýas a result ofÌýan LMEU or an LMEO, FWA will process this application and make any licence decision in the normal way.Ìý

Sharing informationÌý

35 .ÌýFWA may share evidence and decisions with other government agencies and enforcement agencies who may decide to pursue their own investigation.Ìý

Contact FWAÌý

36 .ÌýIf you have any questions, you can contact us by:

• email at licensing@fairworkagency.gov.uk
• phone on 0345 161 6000
• post at Fair Work Agency, Loxley House, Station Street, Nottingham, NG2 3NG.

Monday to Friday, 9am to 5pm (except public holidays)Ìý

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