Search terms: Employment & Labour
The Labour Code sets down various rules regarding working time (eg, daily and weekly working time, night work and shifts, overtime and rest periods). The code states that the normal daily working hours must not exceed eight hours, and any working hour performed between 10:00pm and 6:00am is considered to be night work.
The standard cost of employment, based on the Albanian legal framework, comprises the employee's salary, social security and healthcare contributions and personal income tax. This update outlines the formal and practical requirements with regard to payroll calculations and declarations that each employer should take into account (special provisions may apply with regard to specific activities).
Under the Albanian Labour Code, an employment agreement is generally entered into for an indefinite term. However, for jobs of a temporary nature, an employment agreement can also be entered into for a fixed period. With regard to the termination of an employment agreement, the code distinguishes between the normal termination procedure and the immediate termination procedure.
The legislature has recently approved additional obligations on employers for the protection of health and safety at work, with the publication of two decisions by the Council of Ministers in the Official Gazette. These decisions lay out special procedures to be observed by all employers for the protection of their employees' physical and mental health, with the aim of improving workplace conditions.
The new Law on Voluntary Pension Funds governs the establishment, activity and supervision of voluntary pension funds with defined contributions. One innovation of the new law is the clear separation of the concept of the 'pension fund' from the concept of the 'management company'.
Safe Work Australia has released the exposure draft of the model occupational health and safety legislation for public comment. This update provides an overview of some of the key proposals in the model act, including provisions on the primary duty of care, incident notification, the regulator's enforcement and information-gathering powers, and offences and penalties.
The Workplace Relations Ministers Council has agreed to a framework for model occupational health and safety (OHS) laws and has given instructions for the drafting of model OHS laws to commence. During a recent meeting the council provided its response to the recommendations of the Panel for the National Review into Model OHS Laws regarding the optimal structure and content of a model OHS act.
The Fair Work Bill has passed through the Senate after an agreement was reached with Senator Steven Fielding on phasing in its definition of a 'small business' for the purpose of excluding unfair dismissal claims. The agreement means that the government can implement its timetable of amendments to unfair dismissal and enterprise bargaining laws from July 1 2009.
The National Review Panel into Model Occupational Health and Safety Laws has delivered its second report. This update provides a preliminary summary of the key recommendations in the report, including recommendations regarding definitions of certain terms, the roles of inspectors and codes of practice.
The closing date for submissions to the national review into model occupational, health and safety legislation was July 11 2008. The panel received over 240 submissions from various parties, including public and private sector organizations, government, industry groups and the unions. This update outlines some of the key points arising from the submissions.
The panel established to review national occupational health and safety laws and possible harmonization recently released an issues paper to stimulate discussion and encourage written submissions to the review. The issues paper was developed following a six-week consultation period across the country with key stakeholders, including businesses, unions and other interested parties.
The Supreme Court recently clarified a conceptual question concerning age discrimination. The case was unique in that the plaintiff was the only contender for the job and the vacancy was never filled. The court had to decide whether discrimination could occur even in the absence of a person with whom the applicant's situation could be compared.
Employers must respond quickly when defending employees against mobbing attacks and harassment by their peers, a recent Supreme Court decision has confirmed. The court made clear that although an employer is free to choose any means necessary to protect its employees against such behaviour in the workplace, measures must be taken without delay.
Although Austria has had a statutory framework in place since 1988 regulating the relationship between temporary workers, their employers and the entity to which they are assigned, the legislature was slow to implement the regulations set forth in the EU Directive on Temporary Agency Work. In order to adopt the directive's provisions, the Temporary Employment Act will shortly be amended accordingly and signed into law.
Confidence in occupational retirement schemes has been lost over the years due to financial crises current and past, incorrect investment decisions and lax oversight. Many employees transferred their pension rights to defined contribution models hoping for higher returns, but instead suffered losses. The recent amendment of the Pension Fund Act aims to mitigate potential negative effects on occupational pensions.
Austrian law requires companies to be members of the Chamber of Commerce. In general, the applicability of a collective bargaining agreement is determined through mandatory membership of the relevant division of the Chamber of Commerce; the division to which a company belongs depends on the employer's trade/business and corresponding business licence.
In two recent decisions the Supreme Court clarified employer liability for harassment perpetrated by employees. The decision demonstrates that sexual harassment by the employer can also be perpetrated by the victim's superior. In such case the employer will be (vicariously) liable even where the harassment was the first such conduct of its kind.
The European Court of Justice recently issued a landmark decision on the application of the Flemish Decree on Use of Languages. The court held that the provision requiring employers with an established place of business in the Dutch-speaking region of Belgium to draft employment agreements exclusively in Dutch, under penalty of nullity, infringed the free movement of workers in cross-border agreements.
The Programme Act, which was recently passed into law, contains provisions that aim to assist in the fight against social security fraud. One of these is an anti-abuse provision against social security fraud in the context of intra-European Economic Area mobility. Under the act, Belgian authorities encountering an abuse of the system can subject the relevant worker or self-employed person to Belgian social security where applicable.
The Programme Act, which recently came into force, contains stricter rules regarding the hiring out of personnel (also known as 'body leasing'). These rules will have a clear impact on companies that work with service providers or subcontractors that hire out personnel, or that hire out personnel themselves. Among other obligations, a written service agreement will now be required.
The first claim made under the Trade Unions and Employers' Organisations (Registration, Recognition and Status) Act was filed by six former employees of banana farm Mayan King Limited. The employees alleged that they had been dismissed due to their role in spearheading a movement to unionise workers. The compensation awarded to the claimants was largely affected by the particular facts of the case.
The Court of Appeal recently handed down a decision in an employment dispute which appears to be contrary to long-established principles of the Trade Unions and Employers' Organisations (Registration, Recognition and Status) Act, which provide that a person cannot be awarded damages for injury to feelings. The employer, Mayan King, has been given leave to appeal the decision to the Caribbean Court of Justice.
The Labour (Amendment) Act will make significant changes to the law relating to employer/employee relationships in Belize. While some of the changes are not as extensive as originally drafted and therefore are unsatisfactory to the unions, they have still caused concern among employers which are already facing challenges in keeping their businesses afloat. This update summarises the main changes introduced by the amended act.
It is unlawful for an employer to discriminate against a disabled employee on the basis of disability unless 'unreasonable hardship' on the part of the employer can be proved. The Human Rights (Unreasonable Hardship) Amendment Act 2011 has now amended the need for the relevant minister to issue specific rules to govern how 'unreasonable hardship' could be determined.
Employers must identify the areas of business that they intend to protect when drafting a non-competition clause. Under recent case law, the key would appear to be confidential and sensitive information. The fact that an ex-employee may be able to work elsewhere, having been exposed to highly significant, confidential and sensitive information, will prompt a court to protect the employer.
The Employment Act 2000 was a landmark piece of legislation which established minimum employment standards in Bermuda for the first time. Any employee who is employed wholly or mainly in Bermuda comes within the jurisdiction of the act, as do employers. The act provides minimum requirements; however, if individual contracts or collective bargaining agreements are more favourable, their standards will prevail.
Minimizing the legal risks associated with the dismissal of an employee is good business practice for any employer in Bermuda. This is particularly true since the entry into force of the Employment Act 2000, which provides aggrieved employees with statutory remedies for unjust dismissal. However, employers can minimize the legal risks associated with the dismissal of an employee by taking certain steps.
The Employment Amendment Act 2006 has introduced a new regime for employers and employees in the areas of termination and the winding-up of companies, but made no change to the provisions on overtime. Among other things, an employee's employment may be terminated only for a valid reason connected with the ability, performance or conduct of the employee or the operational requirements of the employer's business.
A new regime governing the retirement of disabled persons will enter into force in November 2013. The new legislation acknowledges the right of disabled persons to retire and defines the term 'disability'. Further, it lays out the criteria for retirement and the method by which a retired insured disabled person's monthly income is calculated. The government will issue an implementing regulation to facilitate compliance.
Congress has passed a constitutional amendment extending to persons who work in homes ('domestic employees') a number of rights protected by the Federal Constitution, including compliance with minimum wage requirements and rights to maternity and paternity leave. While it is too early to predict the impact of these new laws on domestic workers, labour costs are certain to rise.
The rise in the use of IT systems in Brazil has led to repercussions for employers, in particular in relation to monitoring those who use the Internet for leisure activities while at work (eg, sending private emails or visiting online social networking sites). A number of tools exist to protect employers from the risks that arise as a result of employee use of technology in the workplace.
The Ontario Workplace Safety and Insurance Board is in a state of flux, with many changes occurring and more on the horizon. While the board has forged ahead with several changes to coverage in the construction industry, employers can expect further amendments to Ontario's workers' compensation system and significant changes in the four benefit policies currently under review.
The Federal Court has confirmed the importance of timely and effective resignations by directors, and of retaining evidence of when this was tendered if directors wish to avoid liability for unpaid wages and other compensation owing to employees. The matter serves as a stark reminder that the payment order appeal process set out in the Labour Code should not be taken lightly.
The Saskatchewan Court of Appeal recently ruled that members of the Saskatchewan public service pension plan are not entitled to indexed pension benefits, beyond what was already provided for in legislation. Entities involved with the administration and communication of pension plans must take the utmost care and diligence to ensure that pension benefits are described accurately, consistently and clearly.
The Supreme Court of Canada recently issued its ruling in Indalex Limited, regarding competing interests in an insolvency between pension plan members and a debtor-in-possession lender. The court decided in favour of the lender, meaning that pension plan members would not receive full benefits. The decision could have collective bargaining implications, especially in situations of under-funded pension plans.
In a recent British Columbia case, employees who transferred employment as part of a corporate transaction were awarded monetary damages on account of lost pension benefits. The court awarded damages based on the difference in value between the pension benefits that the employees would have earned at their former employer during a reasonable notice period and what they actually earned at their new employer.
There is a growing awareness of mental health issues in the workplace and increasing calls for the government to enact legislation to provide employees with a psychologically safe workplace. One of the most recent developments in this area is a standard prepared by the Canadian Standards Association and the Bureau de normalisation du Québec, which sets out optimistic suggested goals and processes in this regard.
The Labour Code states that an employer may not change or terminate an employment contract through redundancy without the employee's agreement. Accordingly, unless the employee agrees to the termination of his contract, he should be dismissed with severance pay which is agreed either with him individually or collectively with the labour union.
Difficulties often arise in the event of employment agreements whereby an individual renders (and issues invoices for) services requested by a company. The individual may claim before the labour courts or the governmental labour authorities that he or she is in fact a company employee who is entitled to all the corresponding benefits.
The Chilean securities and insurance regulator has issued General Regulation 99 on employee offerings and stock option plans. The rules exempt from registration offers to subscribe or acquire the stock (or stock options) of any Chilean or foreign company, whether privately or publicly held, or any of their subsidiaries or affiliate companies.
The secondment of expatriate employees to China has been a headache for multinational companies since 2009, when the tax authorities started to treat secondment as creating a permanent establishment of the overseas employer. However, new rules recently issued under domestic tax law with respect to cross-border secondment will hopefully ease the pain associated with expatriate secondments.
The Supreme People's Court has issued the long-awaited Interpretation on Various Issues Concerning Application of Law in the Trial of Employment Disputes (commonly referred to as 'SPC IV'), which provides clarity on some hot-button issues. Among other things, it sets out certain severance pay protections and specific rules on the enforcement of non-compete restrictions.
The Standing Committee of the National People's Congress has finally passed an amendment to the Employment Contract Law, under which companies will no longer be allowed to hire staff through staffing agencies, except under very narrow circumstances. Companies should be mindful of how these changes may affect their human resources structures.
The Shanghai Pudong District People's Court has dismissed an employee's claim against his former employer for termination payments after finding that the credibility of the employee's evidence was outweighed by the evidence produced by the employer and the employee's refusal to take a polygraph test. The case highlights that submission of fraudulent evidence is still a problem in employment disputes in China.
The Dongguan Number 3 District People's Court has upheld an employer's termination of 17 striking employees for misconduct. Although Chinese law does not explicitly allow employees to strike, it is silent on whether strikes are considered illegal. This case indicates that in some strike situations, the courts may uphold an employer's disciplinary actions against striking employees on the ground of serious violation of company rules.
The Shenzhen Municipal People's Congress Standing Committee has passed the Regulations on the Promotion of Sex Equality, which will become effective in January next year. While various national laws and local regulations already contain provisions related to sex discrimination and sexual harassment, this is the first piece of legislation exclusively addressing the issue of sex equality.
Employers and employees can conduct agreements, known as salary exclusion agreements, through which they classify certain payments as non-salary payments. Law 15/1990 establishes what types of payments can be included in these agreements, as well as their effects on social security and other employment-based welfare contributions.
The Employment Court recently upheld a claim for unlawful termination of a university professor. Despite finding that the university had followed its statutes and regulations fully and had investigated allegations against the applicant using a reasonable procedure, the court found that the university had failed to terminate the applicant's employment within a reasonable period of time after hearing of the complaints.
The Employment Court recently ruled on whether a former employee was entitled to a claim of constructive dismissal following suspension of her employment. The onus was on the applicant to prove that she had lawfully terminated her employment as a result of the respondent's conduct. In its ruling, the court held that the respondent had exercised a disciplinary authority beyond that granted to it by the contract of employment.
In a recent case the Supreme Court considered whether a transfer of business had occurred. Under the relevant Cyprus and EU law, all rights and duties of the transferor stemming from the employment contract as it exists at the date of the transfer must be transferred to the transferee. The transferee must retain the same terms and conditions of employment for at least one year after the transfer.
The Nicosia Employment Court recently considered the circumstances under which an employee is entitled to increased damages following unlawful dismissal. The court's decision suggests that increased damages can be awarded only in cases where an applicant can prove that his or her termination had an adverse impact on any aspect of his or her life.
The Supreme Court recently dismissed an appeal in relation to a disputed employment agreement, brought following the appellant's termination due to lack of integrity. In light of this decision, employers should ensure that they have proper contracts in place in order to avoid uncertainty, and that they implement proper disciplinary procedures in accordance with the principles of natural justice.
In a recent case the Court of Appeal ruled on termination as a result of irreparable damage in employment relations. The appellant considered her dismissal to be illegal, unconstitutional and against the rules of natural justice. However, the court concluded that the employer-employee relationship had been irreparably damaged as a result of the events of the case and that the appellant's dismissal was a necessary consequence.
The Supreme Court recently ruled that the firing of an employee with immediate effect for frequent personal use of company computer equipment (a total of 102 hours in one month) was lawful. The ruling also clarified that under the Labour Code, employers may legally monitor employees in order to check on personal use of company equipment without infringing employees' privacy rights.
The Act on Criminal Liability and Prosecution of Legal Entities recently entered into force. The aim of the new law is to allow legal entities to be held criminally liable for conduct that must be enforced by the Czech Republic due to international treaties and European law. Employers are advised to pay close attention to the measures that they adopt to prevent employees from committing illegal acts.
The Supreme Court recently addressed a situation in which an employer had negotiated a non-compete clause with an employee in which it was expressly agreed that the employer could withdraw from this provision. However, the court invalidated the provision establishing the employer's right to withdraw from the non-compete clause without reason and without monetary compensation.
The new Act on Specific Health Services recently became effective, introducing a new system of company preventive healthcare, detailing the provisions that employers are obliged to ensure. The act allows employers whose employees perform only certain types of work to have, on written request, their occupational medical examinations carried out by the general practitioner at which the employee is registered
An amendment to the Labour Code has recently been introduced that aims to encourage greater flexibility in employment relationships and increase the motivation of employers to create new jobs. The amendment brings many significant changes, including extending the trial period for managerial employees to six months and extending the maximum length of a fixed-term employment relationship to three years.
The EU advocate general recently found that an age-graduated pension scheme was in compliance with EU law. In his decision, he held that any such age-graduated pension scheme was an act of age discrimination. The main question was therefore whether such discrimination fell within the derogation of Section 6a of the Danish Anti-discrimination Act, or whether it could be deemed unlawful.
The Eastern High Court recently found that an agreement that an employee would waive all claims against his employer should not include claims that could not have been predicted at the time at which the agreement was concluded. The judgment shows that, irrespective of whether a severance agreement has been concluded in connection with dismissal, an employee may be able to raise additional claims against the employer.
The Eastern High Court recently established that an employer's failure to acknowledge the prognosis of an employee's impending return to work counted as grounds for unfair dismissal. Despite indications to the contrary in the Danish press, the judgment does not change existing case law under which a company or authority may fairly dismiss an employee following absence as a result of illness.
A recent amendment to the Act on Equal Treatment of Men and Women as Regards Access to Employment gives parents the right to ask for flexible working arrangements when resuming work after maternity or paternity or parental leave. As the interpretative notes do not indicate that the amendment is intended to change legal practice, it should be regarded as a mere codification of the state of law already in force.
Companies preparing to carry out an election of employee representatives to serve on the board of directors are advised to pay attention to new rules regarding the election procedure. The provisions set forth in the Companies Act have recently been supplemented by a new executive order, which contains a number of new procedural rules and allows for derogation from the rules to a much greater extent than before.
The Board of Equal Treatment recently found that employers are not permitted to use wording in job advertisements that implies that they are targeted at young applicants. Attaching importance to seemingly neutral criteria can create an assumption that the employer is seeking young employees, which is contrary to the Act on Prohibition against Discrimination in Respect of Employment.
The European Court of Justice (ECJ) has issued a series of decisions related to employees' right to paid leave. In the most recent of these, the ECJ held that the right to annual paid leave can be annulled under specific circumstances, particularly with regard to short-term work and employment subject to a social plan agreed between an employer and its works council.
The decisive factor in determining whether the Acquired Rights Directive results in a 'relevant transfer' of employees on a contracting-out is whether there is a stable economic entity which retains its identity. In considering whether an entity retains its identity, a distinction is made between 'asset-reliant' and 'labour-intensive' entities.
The EU Pensions Directive, first proposed over 10 years ago, finally came into effect in September 2003. The directive aims to pave the way for pension schemes to operate, and be managed, across EU borders - an attractive proposition to multinational companies due to the potential for cost savings and simplified administration.
The European Court of Justice has ruled that all on-call duty performed by a doctor required to be present in a hospital constitutes 'working time' for the purposes of the Working Time Directive. This will be the case even where the doctor sleeps at the hospital when his services are not required, and periods of sleep or inactivity do not amount to rest periods.
In June 2003 the EU-level social partners agreed a joint text on socially intelligent restructuring, which provides companies with a set of guidelines to follow in order to ensure successful change management. Key recommendations include good-quality, timely and open communications, and developing workers' skills and qualifications.
The European Commission is planning a draft directive on data protection in the workplace in 2004 or 2005. Its proposals include a general European framework on the processing of medical data, and limits on the use of data resulting from drug and genetic testing.
The Supreme Court recently ruled that payment of unequal salaries to employees performing the same duties was justified based on different applicable collective agreements. The decision seems to indicate that the prohibition against discrimination does not give the employee a right to receive employment-related benefits based on the collective agreement that is more beneficial to him or her in that situation.
Amendments to annual holiday legislation have recently been proposed. The revisions concern the calculation of holiday pay for employees receiving monthly or weekly pay and the removal of the qualifying period relating to employees who fall ill during annual holiday. Further amendments to the calculation of holiday compensation at the expiry of employment are proposed.
The validity of illegal industrial action and the threat of fines were recently assessed in connection with a strike undertaken by employees of national carrier Finnair. As a temporary precautionary measure, a district court prohibited the action by threating the striking employees with a €2.8 million fine. Since then, both the legal validity of the decision and the size of the threatened fine have been the subject of debate.
The Supreme Court recently held that an employer had no grounds to terminate the employment of an employee engaging in competing activity with immediate effect. However, the employer would have been entitled to terminate the employment with notice. The decision emphasises that the threshold for terminating an employment relationship with immediate effect is very high.
The Supreme Court recently issued a judgment concerning the legitimacy of an employment contract term which stated that the employee's salary also included supplements based on the applicable collective agreement. According to the ruling, in case there are negotiations over the base salary, it should be specified that supplements are paid according to the collective agreement.
The Labour Court recently issued a judgment concerning the right to terminate an employee as a result of repeated sickness-related absences from work. The ruling seems to indicate that although the starting point is that the employer may not terminate an employee due to illness or disability, termination may be acceptable if the frequency of sickness-related absences is unusually high.
A recent government action plan seeks to increase employee representation on the boards of directors of large companies, with the aim of boosting the competitiveness of French industry. However, it remains to be seen whether greater employee involvement in strategic decision making will achieve this aim, or whether the increased regulatory burden will end up holding businesses back.
Recent judgments passed down by the European Court of Justice and the Supreme Court could have a significant impact on French employment laws, specifically on the accrual of paid holiday, the effect of sick leave on holiday entitlement and the obligation to ensure that employees are able to take paid holiday.
A manager set up a meeting with one of his female employees outside regular work hours in a hotel room. The manager was terminated on grounds of gross misconduct after the employee complained. The Supreme Court ruled that the employer was justified in its decision and confirmed the differences between the definitions of 'moral' and 'sexual' harassment, which do not require the same conditions to be fulfilled.
A worrying new case law trend is exposing companies to a higher risk of litigation when implementing reorganisation processes in France, especially where the reorganisation plan involves a headcount reduction. In such cases the lack of a genuine economic motive can lead to the entire restructuring process being deemed null and void.
Under French law, employers must tolerate employees' reasonable personal use of IT systems. However, there are certain limits to this. Recent cases have shown that the extent to which an employer can take action against employees who act in an inappropriate manner, particularly in relation to pornographic websites or files, depends on the employee's actions and whether the employer has policies in place.
The amended Social Security Financing Law recently entered into force. It has created a controversial new obligation for commercial companies with at least 50 employees to pay an additional profit share to their employees for any year during which the dividends paid to shareholders have increased compared to the average of the two previous years. Much of the controversy is linked to the lack of clarity in the scope of the legislation.
The European fund sector will soon be subject to new regulatory requirements concerning the remuneration of fund managers. Remuneration will have to be calculated in an appropriate manner, without encouraging staff to take risks which are inconsistent with contractual conditions or instruments of incorporation of the funds they manage. Affected enterprises must adapt their existing remuneration schemes accordingly.
A recent Federal Labour Court decision dismissed a claim of a former employer to surrender the remuneration which the employee had received from a competitor. The court assumed that the contractual non-compete clause continued to apply during garden leave. The result of the decision means that the employer must continue to pay the employee, while the employee also draws a salary from the competitor.
Is it lawful for an employer to bear the costs of fines and legal defence for criminal proceedings against one of its employees for illegal acts committed in the context of his or her work? Does the employee have a right to have such costs refunded? An employer may have to consider these issues if an employee oversteps legal boundaries in the company's commercial interest.
A works council consulted a firm specialised in advising works councils. The consulting firm charged the works council for services rendered, but the employer did not pay as it believed that the consulting firm did not provide satisfactory proof of its services. The Federal Court of Justice held that a works council can validly enter into agreements with third parties within the scope of the responsibilities assigned to it under the Works Constitution Act.
The use of an interim employment and qualification company is a good way to preserve jobs and insolvency assets in a crisis or insolvency-hit company. Among other advantages, this model ensures that the employer will avoid the risk of lawsuits being filed on the grounds of unfair dismissal. However, a recent decision sets narrow limits for the use of such models.
The issue of whether a company has increased its pension sufficiently often arises between employers and recipients of company pensions. The review of the pension amount required under statute stipulates that employers must exercise due discretion, taking into account both the interests of company pension recipients and the financial situation of the company.
Ghana has passed the long-awaited Whistleblowers Act. It is the culmination of stakeholder consultations and lobbying by civil society groups to enhance probity and accountability in the use of government resources. It outlines the instances and processes through which employees can disclose information on the illegal conduct or corrupt actions of their employers or fellow employees without fear of retribution.
Article 37 of the new Law 4024/2011 has significantly amended the regime governing collective negotiations in Greece, introducing three main changes which were unimaginable only a few months ago. The new law aims to reduce unemployment – or at least amend some provisions which have increased unemployment in the past – and help businesses to become more competitive.
Two new laws have amended the longstanding meditation/arbitration system for collective labour disputes, which had attracted much criticism and which led to employees receiving unreasonable pay increases, even during the global and national financial crises. However, the new laws are merely a compromise between what needs to happen and what the unions will allow to happen.
Article 17 of Law 3899 (December 17 2010) significantly modifies Greek labour law. As the government stated before the Parliament, it is aimed at "maintaining and increasing jobs and enhancing the competitiveness of Greek businesses". With the introduction of these changes, Greek employment law has become more flexible and investor-friendly, with the aim of saving and creating jobs.
The credit crunch has proved an irresistible temptation for companies to expand their use of unpaid internships, but it can be hard to distinguish between 'work experience' and 'working'. Employers should carefully consider the placements that they offer, as they may face prosecution under minimum wage laws.
The States has approved the preparation of an ordinance to amend the Conditions of Employment (Guernsey) Law 1985. The change arises from an interesting example of the interplay between the different laws that impact upon the employment relationship. Occasionally, applying the law will require businesses to balance seemingly conflicting regulations – if in doubt, employers should seek legal advice.
The Employment Protection (Guernsey) (Amendment) Law 2005 has been passed by the States and is now in force. The new law makes some significant changes to the existing law and generally introduces greater rights for employees. This in turn means greater risk - and potential expense - for employers.
The new Labour Code has introduced changes to the collective redundancy process. The most significant amendment affects the employer's consultation obligation. According to the new rules, in case of collective redundancies the employer will consult only the works council, if one exists; no provision is made for how the employer should proceed if there is no works council.
The new Hungarian Labour Code, which recently came into effect, introduces certain amendments and rules to the previous code that affect the forms of flexible employment. Among other things, the new code allows employers to terminate fixed-term employment contracts without incurring significant pay-outs, establish shared positions and make agreements with school cooperatives for student employment.
A major reform of Hungary's Labour Code will come into force in July 2012, affecting not only employers and employees, but also trade unions and works councils. The change will alter many aspects of the employment relationship, including termination, leave and unfair or adverse statements by employees through online media.
The protection of employees returning from maternity leave has always been a significant issue, where social considerations and employment law questions inevitably overlap. As in so many areas, effective legislation must balance the different interests of the parties involved. However, problematic aspects of the legal regime tend to be ignored or concealed when they should be addressed and resolved.
Non-compete and non-solicit agreements are a popular way to try to prohibit employees and former employees from working for a competitor or divulging trade secrets or other proprietary data. In India, such agreements are affected by Section 27 of the Indian Contract Act 1872, whereby any agreement that restrains a party from exercising a lawful profession, trade or business is void.
The Supreme Court is considering whether a large software company employing over 100 workers can be classed as an 'industrial establishment'. Workers in an industrial establishment enjoy greater protection, with the employer obliged to give at least three months' written notice and obtain state permission prior to the termination of employment.
Software professionals cannot be classified as workers following a recent ruling by the Delhi High Court. In this case, the manual work carried out by the professional was found to be incidental to his primary duty as a risk management consultant. This primary duty was also found to involve a considerable degree of creative input, exempting him from being a skilled worker.
Domestic labour laws tend to be pro-worker. As such, employers must take seriously their obligations under the various statutes. Once an employment relationship has been established, the employer must fulfil certain statutory obligations; non-compliance may have serious consequences, including imprisonment.
Recently, the courts have shown an inclination to enforce non-compete covenants which apply to the post-termination period, provided the injunction or restraint is sought for the purpose of protecting the employer's interests. Those interests of employers which are considered to be entitled to protection are proprietary information such as trade secrets and business connections.
As the security situation in Iraq has eased, the amount of interest in international direct investment has increased. However, many international corporations have expressed a desire not to be subject to the general laws in force regulating domestic employment relationships. This is because with its socialist background, Iraqi labour law is generally highly protective of employees and makes termination difficult.
The aim of the Safety, Health and Welfare at Work Act 2005 is to provide a framework and a set of broad general duties and organisational arrangements necessary to improve health and safety standards. However, the regulations required to give full effect to the act's provisions on alcohol and drug testing are still awaited. This update considers the policies that employers may choose to implement in this regard.
The year 2009 was slow on the legislative front. The year saw the publication of three employment-related bills: the Industrial Relations (Amendment) Bill, the Employment Agencies Regulation Bill and the Labour Services (Amendment) Bill. This update outlines the aims of each new bill.
New legislation has been introduced which significantly amends a number of areas of the Pensions Act. These measures have been primarily introduced in response to a European Court of Justice decision in relation to the state's obligations under the EU Insolvency Directive and the funding crisis in which many defined benefit pension schemes in Ireland find themselves.
The Labour Court has ruled that notified redundancies could amount to exceptional collective redundancies provided that: (i) they were implemented following a refusal by the relevant employees to accept proposed changes to their terms and conditions of employment, and (ii) the employer subsequently replaced the redundant employees with other employees on less favourable terms and conditions.
The main purpose of the Employment Agencies Regulation Bill is to strengthen the regulatory framework for the operation of employment agency services by requiring employment agencies to be licensed in Ireland. The licensing requirement applies to both Irish and foreign-based employment agencies.
In a recent decision the High Court has clarified the fate of employees who object to moving to a new employer in circumstances in which their jobs are outsourced as part of a transfer of undertakings. This issue had become a matter of particular concern for employers following a 2007 Employment Appeals Tribunal decision.
An Isle of Man employer must pay not only Class 1 employee National Insurance contributions (NICs), but also Class 1 employer NICs, even though its employees may work wholly in Great Britain. This was the finding of the Staff of Government Division (the Isle of Man Appeal Court) on an appeal from the social security commissioner.
A case raising the question of the effect on the termination date of a payment in lieu of notice was recently decided by the Isle of Man Employment Tribunal. The tribunal had to look at the real intention behind a payment in lieu of notice and whether, in the circumstances of the particular case, it had the effect of prolonging the period of employment to enable the one-year statutory threshold to be reached.
The Manx High Court recently addressed the question of whether an employment tribunal had the power to insert a term into an employment contract which was different from the term that had been agreed and performed between the parties. The appeal centred on the salary of Mrs Simpson, the tribunal claimant, throughout her employment with the defendants, Mr and Mrs Pearson.
In Stringer v HM Revenue and Customs the House of Lords ruled that an employee accrues statutory holiday throughout any periods of sickness and that such accrued holiday is to be paid in lieu in the event that the employee's contract of employment is terminated. However, the Manx Department of Trade and Industry has since clarified that this judgment does not apply in the Isle of Man.
The employment tribunal is a less formal setting for resolving employment disputes than the High Court. A number of significant new labour law rights granted in the Employment Act 2006 have increased the workload of the tribunal. As a result, the rules on tribunal procedure were updated and have been in force since January 31 2009.
The Court of Appeal has clarified the procedure to be adopted when a party wishes to appeal to the High Court a decision of the island’s Work Permit Appeal Tribunal. Interim decisions of the tribunal cannot be appealed until the tribunal has reached its final decision on the appeal it is hearing.
One issue in collective labour law that has both legal and practical ramifications is the definition of the term 'bargaining unit' for the purposes of collective bargaining and the signing of a collective agreement. In a recent case, the National Labour Court ruled that policy considerations justify more flexible rules for defining the bargaining unit at the stage of breakthrough unionisation.
The National Labour Court recently overturned the commonly held opinion that once an employee had reached the age of 67, the employer was entitled to forcibly retire the employee without further consideration. However, while this ruling can be regarded as a breakthrough, according to its reasoning, the fact that an employee has reached the compulsory retirement age is still regarded as a relevant consideration.
The courts have debated the issue of age discrimination in the workplace in various contexts. In a recent case the Supreme Court of Justice ruled that the compulsory retirement arrangement that applied to Prison Authority employees, which effectively set a compulsory retirement age 10 years earlier than that of other state employees, was discriminatory, unjustifiable, null and void.
Israel has a wide array of anti-discrimination legislation in relation to the workplace. The two most prominent laws are the Employment (Equal Opportunities) Law and the Male and Female Workers Equal Pay Law. The Supreme Court recently addressed the issue of whether proof of entitlement to relief under the latter law is sufficient also to shift the burden of proof to the employer under the former law.
The 'rule of the repentant' reflects the moral and social obligation to help to rehabilitate a repentant criminal, without the crime being attached to him or her for the rest of his or her life. In the context of employment law, the rule governs an employer's access to the Crime Register. Apart from in defined cases, an employer cannot obtain information from the Crime Register or ask an employeee to give it permission to do so.
The Tel Aviv Regional Labour Court recently rejected a case brought by a waiter whose exposed skin was covered with tattoos, which he refused to cover while serving customers. The waiter had claimed for damages on the grounds that the employer's request that he cover his tattoos while serving customers was unlawfully discriminatory and that he had been dismissed in bad faith.
The Supreme Court recently issued an important decision that deals with two specific issues: anonymous whistleblowing and the boundaries of an employee's duty of loyalty in case of the employer's alleged illegal conduct. The decision validates the legitimacy of the whistleblowing system, allowing its use in order to collect information about the misconduct, but also underlines the system's limits.
The labour minister recently issued a circular containing practical instructions for the mandatory mediation procedure for dismissals for objective justified reason under the recent labour reform legislation. Failure to comply with these steps may be used against the employer in litigation, so companies are advised to consider them closely.
One of the most innovative changes introduced by the recent Fornero labour reform is a special streamlined procedure for cases relating to appeals against dismissals and issues of employment qualification linked to dismissals. The Milan Labour Court is now dealing with the application of this new procedure. In two recent cases brought by employees, certain procedural issues were addressed differently by judges.
Labour Minister Elsa Fornero's recent reform has introduced important changes regarding dismissals. One of the most debated aspects of the reform is Article 18 of the Workers Statute, the structure of which has been significantly revised. The new structure provides for various consequences regarding different reasons for unfair dismissal.
Recent labour reforms spearheaded by Labour Minister Elsa Fornero have introduced important changes regarding dismissal, so-called 'social safety valves' and flexible working. Among other things, dismissals are now subject to new mandatory procedures, and fixed-term employment agreements may be established with no reason given for the contract term not exceeding 12 months.
The Court of Milan has held that an employer was wrong to impose disciplinary measures on a union leader for carrying out union activities during working hours using his employer's IT systems. The decision is particularly significant because computer metadata was used as evidence to support the claim against the union leader, in an attempt to prove that he carried out union activities during working hours.
The Ministry of Health, Labour and Welfare recently announced that the welfare pension fund system will be abolished in 2023. Welfare pension funds are authorised to obtain a portion of welfare pension insurance premiums, and to invest such premiums in exchange for paying higher pension benefits than the ministry could pay.
Congress has passed a bill containing amendments to the Employment Contract Act. Two amendments, which will come into force next year, deal with the conversion of fixed-term contracts to indefinite contracts and their terms and conditions. Another amendment, already in force, codifies court decisions regarding the renewal of fixed-term contracts.
Congress has passed a bill containing amendments to the Old People's Employment Security Act. The act currently provides for a mandatory retirement age of 60, but the new amendments will gradually increase this age to 64 by 2025. However, employers will be allowed to retain certain employees who exceed this age.
The Employment Promotion Act for People with Disabilities requires companies of a certain size to include a certain number of people with disabilities among their employees. At present, a company that has 56 or more employees must hire at least one disabled person. However, the Ministry of Health, Labour and Welfare is planning to increase the statutory ratio and lower the company size threshold.
Congress recently passed a bill amending the Worker Dispatch Act. Among other things, the amendments will cap the number of workers who can be dispatched to other group companies and will require the disclosure of information such as the number of dispatched workers and the number of companies supplied.
A proposed amendment to the Employment Contract Act would provide that if the period of a fixed-term employment contract exceeds five years as a result of its renewal, it can be converted into a permanent contract. A further change would codify the view taken in many court decisions that an employee on a fixed-term contract is entitled to a measure of protection if the contract has been renewed many times.
Amendments to the Employment (Jersey) Law 2003 creating rights on redundancy recently took effect. The new provisions mean that for the first time in Jersey there will be statutory redundancy payments for employees that are similar to those operating in the United Kingdom. This legislative change introduces a degree of complexity for employers which will require careful handling.
At some point a business may require restructuring and this may involve redundancies. There are many reasons for restructuring (eg, merger, technological change or loss of business). This update provides guidance on the planning and implementation of a restructure.
A number of sections of the newly introduced Work Injury Benefits Act have been found to be in conflict with the Constitution and have consequently been declared null and void. Their nullification serves as a wake-up call to the Attorney General's Chambers which is charged with legislative drafting.
New draft amendments to the Law on Insurance of Maternity and Sickness shorten the disbursement period during which employee sick pay is covered by the employer. As from January 1 2009, the employer must pay sick pay for the first 10 calendar days of illness. On the eleventh calendar day, this responsibility shifts to the State Social Security Agency.
'Release from work' means the voluntary release of an employee from his or her obligation to work until the end of the notice period, without loss of wage entitlement. The employee is released from the obligation to work, but not from secondary obligations such as the duty of loyalty and the restitution of certain goods.
As the ultimate authority over its own work organisation, an employer has the power to change the employment contracts of employees without their consent, even if the change targets a substantial clause of the contract and is unfavourable to the employee. However, employers should consider the particular risks involved in substantially changing the contracts of staff delegates, who are afforded special protection.
The slowdown in business activity due to the current economic crisis has seen a growing number of redundancies, both collective and individual. As a result, employers must be careful when providing employees with reasons for their termination. The economic grounds must be described accurately; otherwise, the dismissal may be deemed unfair, regardless of the reality of economic difficulties.
A pregnant worker is protected against dismissal from the moment when her pregnancy is medically diagnosed until 12 weeks after the birth. If she is notified of the termination of her employment before she has informed the employer of her pregnancy, the dismissal is null and void. However, recent rulings have questioned whether an action to nullify the dismissal is the sole remedy available to a pregnant worker.
The legal requirement to conduct a preliminary interview before terminating an employement contract is intended to prevent hasty and unconsidered dismissals by providing for a dialogue between employer and employee. However, the requirement does not apply in all cases, and employers must be aware of the factors that trigger it.
Luxembourg has no specific legislation on the impact of outsourcing on employees. As such, companies that enter into agreements involving the outsourcing of employees must be aware of the labour law implication, ensuring that they know their position on issues such as redeployment, dismissal and consultation and notification.
The Luxembourg courts have recently considered the issue of whether a company in economic difficulties must comply with an occupational redeployment procedure within the company - or its wider corporate group - before dismissing an employee as part of a downsizing programme.
The advent of variable pay is fast becoming an important aspect of the attainment of sustainable remuneration in Malaysia. However, the challenge of such a wage environment is what happens when changes take place to operational parameters that affect employee returns in a variable pay situation. In two recent cases the courts clarified their position on this matter.
A recent Court of Appeal decision, which upheld a High Court ruling, highlights the status of trade union recognition in the context of mergers and the construction of vesting orders. The decision offers guidance on the standing of vesting orders and the effect of the transfer of assets and liabilities from a target company to a merged entity.
In a case brought before the Industrial Tribunal an employee sought redress from her former employers. She claimed that she had been engaged on unfair terms which were intended to circumvent overtime regulations and obligations, and was dismissed from her employment unfairly for no good or sufficient reason.
The Maltese Industrial Tribunal recently decided two separate cases filed simultaneously by a woman against her former employer. The woman claimed that she had been sexually harassed in the workplace and as a consequence was forced to terminate her employment.
The Court of Appeal recently confirmed the decision of the Industrial Tribunal in one of the few cases dealing with a transfer of undertaking. The court confirmed that the outsourcing of cleaning services could be interpreted as a transfer of undertaking even though no assets, whether tangible or otherwise, were transferred.
A year after its proclamation, legislation governing employment relationships in Mauritius has marked the beginning of a new era in employment law. The Employment Rights Act 2008 has consolidated the old law and the principles underpinning the employment contract. Furthermore, it has endorsed concepts that are now regarded as fundamental to most employment law regimes.
The Federal Labour Law was recently amended for the first time in more than 40 years. One of many relevant aspects of the new law is the inclusion of new regulations for outsourcing services. Every company in Mexico using the services or work of a third party must now observe several new rules, each of which presents its own challenges and potential risks.
An eight-year legal battle between a trade union and Heineken has finally been resolved by the Supreme Court. Employers purchasing assets or taking on outsourced services from a group business whose staff is employed by another group company must be clear about which staff are assigned to the transferring undertaking, and whether they are assigned permanently, in order to avoid infringing the EU Acquired Rights Directive.
In March 2012 several amendments were made to the Collective Redundancy (Notification) Act. Despite the anticipated difficulties of the amendments, one year on, no judgments have been published in respect of employees requesting their termination to be annulled on the basis of non-compliance with the act. Nevertheless, employers are advised to remain alert.
The new Dutch government is seeking consent from the unions to reform key aspects of the employment legislation. Among other changes, the coalition agreement proposes to abolish the existing dual dismissal system and to replace it with a preventive review of a dismissal by the UWV WERKbedrijf, the public employment service. The government also intends to reform the unemployment benefits system.
The government's long-awaited review of the Employment Relations Act 2000 was recently released in the form of the Employment Relations Law Reform Bill. the bill strongly promotes collective bargaining and the role of unions, at the expense of individual agreements and freedom of choice. It also gives the Employment Relations Authority and the Mediation Service much wider powers.
The Transport and Industrial Relations Select Committee recently tabled its revised Holidays Bill in Parliament. Among other things, the bill proposes that all employees be paid time-and-a-half and given a paid day in lieu when required to work on public holidays. It will also introduce four weeks' statutory leave from 2007.
New laws strengthening protection against smoke in the workplace are a step closer, with the Health Select Committee's report back to Parliament of the Smoke-free Environments (Enhanced Protection) Amendment Bill 2003. Among other things, the bill will outlaw smoking in hospitality venues which are workplaces or serve alcohol, and protect volunteer workers from second-hand smoke exposure.
The Employment Relations Authority recently held that employers must consult with their employees prior to suspending them during a disciplinary investigation. While the authority found that the behaviour of the employee in question justified a dismissal, the manner in which he was suspended was an unjustifiable action causing him disadvantage in his employment.
In response to the government's indication that it wishes to enact legislation to protect employees when a transfer of business occurs, the Council of Trade Unions has proposed the mandatory transfer of every employee employed by a transferor when a service is transferred to a third party, with the employees to be employed by the transferee on "no less favourable terms and conditions".
The Parental Leave and Employment Protection Act was amended in July 2002 to provide for parental leave payments funded by the government. The government has undertaken to review the scheme after it has been in operation for a year. The review will consider extending the period of leave to 14 weeks and providing entitlements to the self-employed.
New legislation regarding national insurance retirement pensions has been enacted and will come into force in 2011. The reform provides more flexibility and offers a number of new options for drawing retirement pensions. The most significant changes are the options to (i) claim pension benefits from the age of 62, and (ii) combine earned income with a retirement pension without reducing the amount of pension received.
In a case between Fokus Bank and a group of employees, the Norwegian Supreme Court recently ruled that the bank could, by unilateral decision, terminate a performance-based pension plan and transfer the employees to a contribution-based pension plan. However, the judgment should not be taken as a green light for all employers which are considering implementing equivalent changes.
In a recent case the Supreme Court found that a disciplinary charge of fraud and misappropriation in the custody of non-company funds could not form the basis of an employee's termination from employment, even though the funds were kept in a locker room located on company premises. The ruling reflects conventional jurisprudence confining disciplinary grounds to causes involving direct work-related issues.
In termination cases involving probationary employees, the employer must generally show proof that, at the start of the engagement, the employee was furnished with the standards under which he or she could qualify as a regular employee. The Supreme Court has held that this general rule does not apply if to do so would exculpate a probationary employee who acts in a manner contrary to basic knowledge and common sense.
The National Labour Relations Commission has upheld the mandatory retirement of a university professor who had reached the age of 60, the retirement age stipulated in the university's retirement plan - which is lower than the statutory mandatory retirement age of 65.
The Court of Appeal has ruled that the removal of a bank officer from her position as division head, while retaining her rank and salary, did not constitute constructive termination or demotion. It thus confirmed the employer's right to control all aspects of employment, subject only to limitations imposed by law, employment contracts, the employer's practices, and principles of fair play and justice.
The Labour Appellate Commission and the Court of Appeals recently held that an administrative manager and concurrent industrial relations officer who threatened her employer with a baseless multi-million peso damages suit was lawfully terminated, on the grounds that her actions constituted serious misconduct and breach of trust.
The National Labour Relations Commission recently upheld a Labour Court judgment dismissing an action for unlawful termination due to the employee's failure to prove the fact of termination. The commission upheld the employer's argument that the complaint lacked foundation because the employee was not terminated and was even given the option of returning to work.
Following an employer's instructions is one of the basic obligations of an employee. The Labour Code does not explicitly state the consequences of an employee following unlawful instructions or adhering to unlawful practices applied at the workplace. Such actions could clearly expose the employee to potential liability under criminal or administrative law, but the consequences under employment law are less obvious.
The Supreme Court recently confirmed a new approach to analysing the consequences of a trade union's failure to notify the relevant employer of the number of union members among its employees in a timely manner. The approach provides a better balance between protecting the rights of a trade union and protecting the employer from negative consequences resulting from the union's negligence.
The Supreme Court has ruled on the reinstatement of a dismissed management board member to his job. The court distinguished between the corporate relationship and the employment relationship between the management board member and the company. The decision should end discussion of whether the Commercial Companies Code regulations affect the claims available to employees under the Labour Code.
The Supreme Court recently ruled on the role of company trade union organisations in termination decisions. The court ruled that under certain circumstances, the failure on the part of the company trade union organisation to provide information requested by the employer did not release the employer from the obligation to notify the organisation of its intention to terminate an employee's contract.
The International Labour Organisation has provided the Polish government with recommendations that it change the legislation concerning employees' freedom of association. Following these recommendations, the government should amend labour legislation to ensure that the right to establish and join trade unions is granted not only to 'employees' in the sense of the Labour Code, but also to other categories of worker.
In the absence of Labour Code regulation, the rules for receiving bonuses are largely determined by decisions of the Supreme Court. A significant change in court practice sheds light on the question of whether incomplete performance of a bonus-related task entitles an employer to withhold an employee's bonus in full.
The new and eagerly awaited regime on temporary work has now been approved. It regulates the licensing and operation of temporary work agencies, as well as the contractual relationships between temporary workers, temporary work agencies and user companies.
The recent State Budget Law has introduced measures to encourage companies to recruit employees on permanent contracts. However, employers often overlook other incentives and benefits which are aimed at encouraging them to employ long-term unemployed people, disabled people, first-time job seekers and other people who are at a disadvantage in the labour market.
The Labour Mediation System - the result of a protocol between the Ministry of Justice and various employers' and trade unions' associations - offers an alternative means of resolving litigation issues arising from employment relationships. A one-year trial of the system has begun in Lisbon and Oporto.
In line with the reforming trend towards the redefinition of social protection schemes, the legal regime for unemployment benefit has been revised. New measures affect aspects including entitlement in the event of termination by mutual agreement or dismissal with just cause, the search for a convenient position and early access to old-age pensions.
Employers are free to choose whichever method of candidate assessment they prefer. However, the Labour Code lays down guidelines and orientations with respect to certain aspects of recruitment and employment, including the advertisement of a position, medical examinations of employees and the confidentiality of personal information.
The Labour Code includes a provision which clarifies the uncertainties which frequently arise in assessing the duration of the probationary period for new employees. It identifies periods during which there is no effective provision of work, defining cases where such periods count towards the probationary period and those where they interrupt and temporarily suspend it.
Under a new law, the Department of Labour will provide mediation and conciliation services and will intervene in disputes arising between workers and their employers in order to preserve industrial peace. It will also establish an Office of Mediation and Adjudication dedicated to conciliation and adjudication of disputes between workers and their employers.
Recent legislative amendments require judges and administrative agencies to interpret the local disability discrimination statute in a liberal and unrestrictive manner which is "most beneficial to persons with disabilities". However, the amendments do not attempt to explain or define what a 'restrictive' interpretation might be.
The Compensation System for Work-Related Accidents Act was recently amended to allow motor carriers that provide independent transportation services to obtain a workers' compensation insurance policy to insure their drivers and driver helpers.
A new ordinance on maternity protection in the workplace was recently published. The ordinance supplements domestic labour legislation with provisions which aim to encourage improvements in the health and safety of pregnant employees and employees who have recently given birth or are breastfeeding, in line with international standards.
The new Union Law, together with the revised Labour Code and other applicable regulations on social dialogue, specifies the scope and role of union activity in employment relationships in Romania. Unions continue to enjoy considerable bargaining power in their relations with employers, particularly in the event of mass dismissals.
The new Labour Code, which came into force on March 1 2003, has substantially overhauled the law regulating employment relationships in Romania. The new code's provisions have been the subject of extensive debate and criticism, particularly in light of the fact that many observers view the code as heavily favouring employees.
The recently adopted National Action Plan for Employment espouses EU norms with respect to employment and social policy. The plan reveals the government's intention to reduce unemployment and social exclusion by facilitating investment in small and medium-sized enterprises and the tourism sector. It also aims to eliminate discrimination.
The draft Labour Code, which deals with issues such as collective redundancies and transfers of undertakings, represents a step forward for Romania as it continues its efforts to accede to the European Union. It will also give greater legal certainty to investors, who are currently faced with an outdated code promulgated during communist times.
The relevant authorities have become more diligent in their quest to ensure that employers comply with the provisions of labour protection legislation. They have the right to impose penalties and take other measures against employers who fail to comply with this legislation, especially if an employer tolerates dangerous or hazardous working conditions.
The Moscow government recently announced a decision to decrease the number of foreign nationals entitled to work in the city. This will affect companies that wish to employ non-Russian workers who are skilled but who do not fall into the class of 'highly-qualified specialists'.
The entry into force of the new Workplace Safety and Health Act marks a move away from prescriptive standards, applicable to all industries and supported by subsidiary legislation, towards a culture of self-regulation in which responsibility is shared between industry stakeholders and confirmed in codes of practice.
A recent situation involving a judicial manager and the fate of the employees of a company under judicial management has come to light. The issue was whether to adopt the existing contracts of employment or to terminate them and execute fresh contracts. The judicial manager’s liability was also discussed.
A recent Court of Appeal decision is significant because it defines and restricts an employer's liability for wrongful dismissal, in a time when share-option schemes, bonuses and other non-traditional forms of remuneration are fast becoming the norm.
The Ministry of Finance and the Inland Revenue Authority have announced that employees in Singapore can now enjoy a 50% income tax exemption on gains from exercising their stock options. However, employees will be able to enjoy the tax concession only if the company, the employee and the scheme itself satisfy certain eligibility requirements.
A recent case discusses the jurisdictional requirements of the Industrial Arbitration Court. A broad legislative definition of 'trade dispute' does not protect the employee from first having to satisfy the jurisdictional requirements.
A recent case concerning the legality of severance payments to directors in the absence of shareholder approval illustrates Singapore legal principles that differ from other common law nations. Unapproved payments may still be legal if the director provides some form of consideration is in exchange.
Including: Pre-contractual Relations; Employment Contract; Working Hours; Vacations; Maternity and Parental Leave; Holidays; Business Trips; Second Jobs; Transfers; Discrimination; Dispute Resolution; Health and Safety; Compensation; Termination of Employment; Legal Relationships.
Including: Legislation and Agencies; Worker Representation; Applicants; Hiring Employees; Terms of Employment; Employers' Liability for Employees' Actions; Taxation of Employees; Employee-Created Intellectual Property; Business Transfers; Termination of Employment; Dispute Resolution; Trends.
Changes are being proposed to the foreign earnings exemption which may potentially affect South African tax liability in relation to foreign-earned remuneration. The exemption currently applies where a South African resident renders services outside South Africa. However, the scope of the exemption may be limited. Employers planning international assignments of employees should monitor developments in this area.
In November 2012 the minister of labour introduced the Employment Services Bill into the National Assembly. It is difficult to state what, if any, real impact will the bill have on the labour market should it be promulgated as law. Many of the endeavours under the bill will be given content only once the minister has consulted the Employment Services Board. Parliamentary hearings are expected to take place in the first quarter of 2013.
When retrenching employees, employers must comply with Section 189 of the Labour Relations Act. Recent Labour Appeal Court judgments suggest that in order to avoid hefty back pay and reinstatement orders, employers should carefully investigate whether retrenchments will fall under Section 189A and follow Section 189A process requirements carefully, and ensure that consultation is explored exhaustively.
A recent debt summit in Midrand has shown that there is still continued widespread abuse and exploitation of garnishee orders, especially in impoverished communities. Such an order is served by the sheriff (or messenger) of the court on the employer, ordering it to make deductions from an employee's salary or wage in settlement of a debt owed by the employee to a third-party creditor.
In SATAWU v Moloto NO the Constitutional Court considered the question of whether Section 64(1)(b) of the Labour Relations Act requires every participating employee to a strike to issue a strike notice (either personally or through a representative). This was a long-running and controversial case involving a nine-year dispute about the fairness of the dismissal of 64 workers.
An order of retrospective reinstatement can have a devastating impact on a business's finances and its industrial relations. As a recent case shows, an employer's response to unprotected strike action should be rational and measured; there should be no hasty decision to dismiss unprotected strikers, no matter how emotional the situation may become.
In order for a termination for business needs to be valid, an urgent business need must exist. The employer must also have made its best efforts to avoid terminating its employees, used reasonable and fair selection criteria to select the employees to be terminated and engaged in good-faith discussions with the employees' representative. The selection of employees for termination raises a number of issues.
Dismissal of poorly performing employees may expose employers to legal liabilities and expenses, as the Korean courts have shown a tendency to rule against dismissal based on poor performance. Therefore, before dismissing an employee on such grounds, an employer should carefully consider a number of factors in order to minimise the potential legal risks that may arise from the dismissal.
It is common practice in Korea for a company to bring in the employees of a subcontractor to work at the company's facilities along with its own regular employees. However, this practice can expose a company to legal risks, including labour disputes with the subcontractor's employees, an obligation to hire such employees directly and/or criminal liability.
'Ordinary wage' and 'average wage' are statutorily defined terms and used as the basis for calculating certain employee benefits. The Supreme Court recently held that regular bonuses paid commensurate with years of service on a quarterly basis should be included in the calculation of ordinary wages. In light of this decision, employers should seek advice on their existing bonus payment scheme.
As a follow-up to its comprehensive plan to improve the protection of non-regular employees, the government recently promulgated amendments to six labour laws. The amendments cover the acts on dispatched workers, fixed-term and part-time employees, employment welfare, labour standards, collection of insurance and minimum wages.
The new Personal Information Protection Act is not limited to information that is processed by computers or other electronic devices - it also covers personal information about employees and executives of private enterprises. As a result, employers will need to obtain consent from employees throughout the different stages of employment for the collection, use and provision of their personal information.
During 2011 demand for employment reform increased due to a breakdown in negotiations between employers and trade unions, soaring unemployment and an ailing economy. In response, Royal Decree 3/2012 and Law 3/2012 on urgent measures for reform of the labour market were forced through and enacted in February 2012. The reforms introduce new regulations in relation to collective employment matters.
Under the latest reforms to the labour law, public administrations can now carry out collective redundancies on economic, technical or organisational grounds, similar to companies. The amendments will affect the 700,000 people employed by public administrations throughout Spain, as well as the employees of companies with more than 50% public ownership.
A new law on urgent measures for labour market reform has reinforced the right of workers to receive training, with the clear aim of improving their employability through ongoing training. The training must relate to the employer's activity and must be specifically designed to address any processes of change, reorganisation or restructuring.
Legislative Royal Decree 3/2012 has replaced the term 'working from home', contained in Article 13 of the Worker's Statute, with the term 'distance working'. 'Distance working' is where working activity is performed principally in the worker's home as an alternative to the worker being physically present in the company's workplace.
Long-awaited labour market reforms were recently published. A primary objective is to promote 'flexicurity' – a concept which combines flexible working conditions with job security. Among other things, companies with fewer than 50 employees can sign a new type of open-ended contract with a one-year trial period for full-time workers, which enjoys considerable tax incentives.
The Spanish social security system was recently overhauled to take account of factors such as increased life expectancy, declining birth rates and the prevailing economic turmoil. Among other things, the retirement age has been increased to 67 and early retirement is now restricted to cases where it can be proved that social security contributions have been made for at least 30 years.
The Labour Court recently examined the conditions for offering an employee returning from parental leave a different position from that which the employee held before the leave. Following an employee's return from maternity leave, she was offered a less favourable position with fewer hours. The Labour Court found that the employer was in breach of the Parental Leave Act and ordered it to pay the employee damages.
A new act regarding temporary employment agency work has recently entered into effect. It includes the regulation of both temporary employment agency companies and client companies. The basic rule is that an employee should be treated in the same way as if he or she was employed directly by the client company. However, this only applies to certain terms of employment.
In a recent ruling, the Labour Court declared a settlement agreement regarding termination of employment null and void. Since the employer had provided the employee with inaccurate information, with the sole purpose of forcing the employee to accept the settlement agreement, the court declared that the employee had been misled. Objective grounds must exist in order for an employer to terminate an employment contract.
There are two main points to remember in connection with fixed-term employment contracts. First, certain conditions must be met, or the fixed-term employment will transfer into employment for an indefinite period. Second, the possibility to terminate the employment before the expiry date must be specifically agreed. Other rules may also apply if the employer is bound by a collective bargaining agreement.
When processing information reported through a whistleblowing system, an employer must observe the rules on the protection of personal data. In general, data regarding criminal offences may be processed only by the Swedish authorities, but information related to key employees or managers involved in serious criminal activities is excluded from this rule.
In December 2010 the first dispute regarding age discrimination in Sweden was settled by the Labour Court. In the case before the court, a 62-year old job applicant, who was neither offered the job nor called to an interview, challenged the recruitment procedure, claiming that he was better qualified for the job than the applicants who were called to interview.
The Supreme Court recently confirmed earlier decisions refusing a Swiss banker's claim resulting from for a share-based bonus plan. The court refused the banker's argument that his vested/forfeited share bonus claim was a non-ancillary part of his overall compensation which could not be made subject to a vesting or forfeiture regime. The court held that the forfeiture of non-vested share bonus claims was valid.
Parliament recently passed an amendment to the Employment Law Act extending opening hours for convenience shops in petrol stations located on highways or main roads with high-volume traffic. The mandatory work-time regime is set to be liberalised so that convenience shop staff at petrol stations can work throughout the night and on Sundays, thereby offering for sale the full range of convenience store products.
A new treaty was recently signed by Switzerland, France and the European Union that will unify employment laws at the European Nuclear Research Council (CERN). The treaty provides that CERN's public procurement offers for new service contracts must state a final choice in favour of either Swiss or French employment law.
The State Secretariat for Economic Affairs recently opened hearings on mandatory time recording by Swiss employers. At present, employers must record the actual time that employees spend working under their individual employment contracts. The secretariat proposed that high-ranking management members be given the right to opt out, in writing, from record keeping.
The Supreme Court recently extended the consideration period for an employer terminating an employee for an important reason. According to the court, the termination was in line with Article 337 of the Code of Obligations, which provides as a general (but rather strict) rule that termination with immediate effect must be handed down within a few working days.
The Swiss and French governments have signed into law a treaty that secures the continuing application of Swiss employment, social security and income tax laws to the binational EuroAirport Basel-Mulhouse in Basel. This has given around 75 Swiss-sector businesses, which employ approximately 6,500 workers, the benefits of a flexible and reliable legal framework.
Under the current law, severance pay is made as a lump-sum payment to an employee whose labour contract has been terminated, subject to certain exceptions. In order to be entitled to severance pay, the employee must have been employed for at least one year. However, if a new draft law enters into force, both the existing severance pay system and its mode of payment will be substantially amended.
Business transfers constitute one of the most significant topics in social law. However, the interpretation of the impact of such a transfer on employment relationships differs under the Labour Law and the Commercial Code. Both laws regulate business transfers, but some argue that certain provisions of the Commercial Code set barriers to the maintenance of employment relationships.
Due to economic, technological and social developments, contemporary employment models have arisen that may differ from the classic model of working on a full-time basis at the employer's workplace. The new Code of Obligations provides for two types of employment contract that are not set out under the Labour Law - namely, remote working agreements and marketing agreements.
The new Code of Obligations recently entered into force, resulting in revocation of the former code after more than 80 years. The new code introduces four new provisions that establish the obligations of employers with respect to annual leave days. Employees are entitled to annual leave days where an employment relationship subject to the new code exists and the regulated waiting period has expired.
Under the Labour Law, an employment contract may be established for either a fixed or flexible term. Although flexible-term employment contracts are the most usual form of contract, the conclusion of fixed-term contracts has led to much debate. In contrast to the former Code of Obligations, the new code regulates new principles regarding fixed-term employment contracts and includes provisions on compensation claims.
The new Code of Obligations will enter into force shortly. The provisions of the new code that regulate the termination of employment contracts comprise a number of remarkable changes and new approaches, not only for employees who work within the scope of the code, but also for those who work within the scope of the Labour Law.
The Cabinet of Ministers has approved a resolution which amends the state system to support the creation of jobs for disabled workers. Under the new procedure, subsidy funds will be submitted not only to accommodate workers in existing positions, but also to create new roles for people with disabilities.
Due to the rising number of occupational injuries in the construction industry, the State Service of Mining Supervision and Industrial Safety has introduced raids on construction sites. The forthcoming Euro 2012 football championships are a particular priority, with monitors from the state supervision organisation being appointed for each site or group of sites.
A new resolution regulates the procedure whereby the Pension Fund of Ukraine conducts scheduled and unscheduled inspections of individuals and their compulsory state social insurance payments. However, third parties can now submit accrual and non-payment information regarding a business entity; as a result, bad-faith accusations may result in a company being labelled as high risk.
Parliament has passed amendments to the Labour Code and the Law on Payment of Labour concerning the regulation of salary payment terms. Under the new wording of Article 115 of the code, salary payment terms can be stipulated not only in the provisions of a collective agreement, but also in an official standard announced by the employer.
The Cabinet of Ministers has passed the Resolution on Certain Issues Relating to the Application of Labour Legislation by Individuals Using Hired Labour. Among other things, the resolution sets out an individual employer's responsibilities when hiring employees, registering their employment and terminating their contracts.
In cases where an employee has inflicted substantial damage to the material assets of the employer, it is crucial that the employer can ensure that the employee is held materially responsible. However, Ukrainian law distinguishes between different forms of material responsibility with varying conditions and implications.
Employers should not assume that they have the right to restrict an employee's freedom to express views on social media where these concern personal beliefs and have no work-related context (ie, being about the employer or work colleagues). However, where Facebook comments are work related (eg, abusive comments about work colleagues that could amount to harassment), employers should act quickly.
The government has published a consultation document on implementing its proposal to introduce the new employment status of 'employee owners'. The proposal will enable companies to offer between £2,000 and £50,000 of shares that are exempt from capital gains tax in exchange for employees surrendering various employment rights.
Where an employee is unable or unwilling to take his or her EU-derived entitlement to four weeks' statutory holiday in the current holiday year due to being on sick leave, the employer must allow the employee to carry over this leave into a new holiday year, even if the employee has not expressly requested this.
The government has proposed an amendment to the Enterprise and Regulatory Reform Bill to provide that an offer made or discussion held with an employee with a view to terminating employment by agreement cannot be taken into account in unfair dismissal proceedings. Further plans for reform would affect equal pay audits, collective redundancy consultations and other issues.
Employers should review any precedent payment in lieu of notice (PILON) clauses and compromise agreement wording to ensure that any payment will not be payable or can be recovered if, having dismissed an employee, the employer subsequently discovers the employee's prior gross misconduct.
A High Court ruling has highlighted the need to ensure that oral assurances are carefully considered. The case concerned a promise made at a bank's staff meeting - of which there was no formal written record - of a guaranteed minimum bonus pool. The judge held that there was a clear intention to create a legally binding obligation with the aim of stabilising the workforce and assuaging concerns over the bank's future.
Including: Employment Relationship; Discrimination; Family and Medical Leave Act; Worker Adjustment and Retraining Notification Act; Whistleblower Protection; Employee Privacy and Individual Rights; Workplace Tort Claims; Restrictive Covenants; Wage and Hour Laws; Employee Benefits; Immigration; Occupational Safety and Health Act
The National Labour Relations Board (NLRB) has staked out new positions that are contrary to the common business practices of both large and small employers. While it is prudent for employers to keep abreast of developments in the NLRB, there are virtually no court decisions addressing the NLRB's recent expansive interpretation of the National Labour Relations Act.
The Equal Employment Opportunity Commission (EEOC) has issued new guidance on the consideration of arrest and conviction records in employment decisions. Although the guidance is not legally binding, it is intended to be a resource for employers, applicants, employees and EEOC enforcement staff in assessing whether an employer's use of criminal history may violate Title VII.
The US District Court for the Eastern District of New York has issued an opinion that may frustrate employers' efforts to minimise unfavourable media attention caused by lawsuits brought against them. In D'Annuzio the court held that the plaintiffs' comments at a press conference on alleged sexual harassment to which they claimed to have been subjected at their former employer were protected by the New York Civil Rights Law.
Given the state of the economy, companies are finding it easier to attract unpaid interns with impressive credentials. However, the recent filing of several class action lawsuits claiming that businesses misclassified workers as unpaid interns in order to minimise labour costs makes it clear that employers sponsoring internship programmes must be diligent in order to ensure compliance with federal and state laws.
In recent years, Congress and state legislatures have expanded the reach of disability laws. However, the courts have resisted attempts by employees seeking to broaden these laws further. Decisions issued by the courts underscore the importance of drafting and implementing sound attendance policies and job descriptions, and not excusing misconduct simply because it may have resulted from a disability.
The New York Court of Appeals has again reaffirmed the strength of New York's at-will employment doctrine in rejecting a wrongful discharge claim. The decision represents a positive development for employers, who can rest assured that New York courts continue to be reluctant to expand the narrow Wieder exception to the robust employment at-will doctrine.
The Social Chamber of the Supreme Court has ruled that where a case involves contractor activities that are the same as (or similar to) those of a contracting party, and for which the latter cannot evidence that the contractor’s activities are not of a similar nature, then the contracting party is jointly and severally liable for all the contractor's obligations towards its employees.
In a recent decision the Social Chamber of the Supreme Tribunal of Justice established that high-ranking employees are not protected by the regime laid down in Article 112 of the labour legislation. In a case where the employer dismissed a high-ranking employee without cause, the court ruled that it could not order reinstatement of the employee or payment of his unpaid salary.
The Constitutional Chamber of the Supreme Court has ruled that an employer's failure to renew the contract of an employee following her period of maternity leave violated Article 76 of the Venezuelan Constitution. In such circumstances the employee is protected by maternity statute.