Two new draft laws were recently published which will directly affect employment contracts if passed. The first proposes introducing benefits for employees regarding the recruitment of workers aged between 16 and 24 and the regularisation of non-registered employees. The second proposes a temporary ban on dismissals in the public and private sectors without just cause.
The government recently enacted Decree 394/16, which increases the tax-free minimum salary, favouring pensioners and unionised employees. However, the taxation of severance payments in cases of dismissal without cause is a contentious issue for the tax authorities and taxpayers and there has been significant increase in claims for income tax withheld from employees on the termination of employment.
Jurisdiction, the application of local law and the currency of benefits based on share option plans were key factors that resulted in a $6 million award by the National Labour Court of Appeals in favour of a former director general of a large telecommunications corporation. The case illustrates that the risks associated with share option plans increase in cases of termination of employment.
In its final session before the general election, Parliament passed a bill which serves as a first step in harmonising the different legal regimes covering blue-collar and white-collar employees. However, not everyone is happy with this half-hearted harmonisation project – most notably, employer organisations – as they believe that the extended notice period for blue-collar workers will cost employers dearly.
As of May 1 2018 smoking in restaurants and bars will be prohibited. The restrictions on smoking in the workplace will also be tightened as of this date. However, the new provisions still afford some leeway to employers in that they can organise smoking breakrooms. As a consequence, the workplace may be more smoker friendly than pubs – who would have imagined that.
New legislation recently came into effect that aims to ease the process of reintegration into the workplace for employees who have been on extended sick leave and who would benefit from a reduced workload in order to aid rehabilitation and reconnect with the workplace. Although it is a well-meant initiative to curb the increase in long-term sickness, the legal framework reveals some major flaws.
Two recent amendments to the Labour Relations Act benefit the legal status of works councils and are geared towards increasing older employees' job prospects. In particular, the term of office for members of a works council has been extended from four to five years. Works council members' entitlement to educational leave has also been extended. Further, the special treatment of employees who start employment at age 50 or older has been abolished.
The Supreme Court recently ruled on the thin line between the freedoms to provide services afforded under EU law and member states' legislation to contain social dumping, which can be extended to employers of other member states when they perform their services abroad. The decision clarifies that foreign minimum wage legislation will be avoided where its application poses an undue burden on employers and where it can be guaranteed that the purpose of minimum wage legislation is not undermined.
The use of outsourcing has historically been uncertain in Brazil, particularly in relation to the outsourcing of a company's core business. However, once in force, the labour reform will create a scenario of greater legal certainty for outsourcing because it expressly authorises the outsourcing of any activities, including a company's core business.
According to a precedent established by the Superior Labour Court, the acquiring company is not liable for the labour debts of other companies within a corporate group that encompasses the acquired company, provided that the entities – at the time of the transaction – were creditworthy or economically viable, except in the case of bad faith or fraud. However, a recent reform to the Labour Code will enter into force in November 2017 and may change the existing understanding in this regard.
The need to modernise the procedural rules applicable to the labour procedure has long been a concern in Brazil. As such, it was well known that labour relations were being modernised and that the law did not satisfactorily account for this progress. In light of this, the newly enacted Law 13,467/2017 will introduce, among several changes not seen in prior legislative amendments, equal treatment of litigating parties and greater legal certainty for both litigating parties and Brazilian society as a whole.
The recently approved labour reform has amended several articles of the Labour Code and Laws 6,019/1974 (temporary employment), 8,036/90 (severance fund) and 8,212/1991 (social contributions). The legislation still protects the constitutional rights of workers. However, it seeks to modernise labour relations by creating rules and defining concepts which allow workers, companies and unions to have more freedom to negotiate their rights.
Struggling against one of the most severe financial and political crises, the government has adopted an agenda that aims to spur an uptick in the economy and reduce the unemployment rate, which hovers around 13%. In this regard, the government has proposed labour and social security reforms. However, some employee unions are urging a general strike across the entire country to obstruct these reforms.
The government recently enacted a measure regarding the fees payable for work permits in the British Virgin Islands. The amendment order replaces the employee flat fee system with an incremental calculation based on salary bands, which now generally assume a higher gross salary. It also replaces most exceptions to the previous scheme, keeping only those for domestic workers.
The Supreme Court recently dismissed an application from the Telecommunications Workers' Union for leave to appeal the decision that unions have no independent legal right, separate and apart from their collective agreement rights, to be involved in every unionised employee's accommodation request. The decision is a victory for employers, employee privacy and the accommodation process.
The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision and employers may find themselves having to make tough decisions on tight timelines. The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. This is a lesson that can be drawn from a recent Alberta Court of Queen's Bench case.
An arbitrator and the Quebec Superior Court recently challenged the well-established principle in labour relations that an employer retains managerial rights in the absence of limiting provisions in a collective agreement. The arbitrator and the court found that the employer had violated the collective agreement because it contained no clear provision that allowed it to act as it did. Therefore, the question remains: what is happening to managerial rights and what measures can employers take to protect them?
Ontario has announced that it will be cracking down on employers that misclassify workers as independent contractors as part of its Bill 148: Fair Workplaces, Better Jobs Act 2017. The bill will place the burden on employers to prove that workers are not employees for the purposes of the Employment Standards Act, reflecting a growing concern among legislators across Canada that workers and employers are operating outside of the traditional employer-employee framework.
In British Columbia secondary picketing is unlawful unless the striking union can obtain a declaration that the secondary business or location has allied itself with the struck employer. Suppliers and other affected businesses can arrange their affairs to work around strikes and lockouts without being declared an ally – so-called 'self-help' is permitted by such third parties. A recent British Columbia Labour Relations Board decision has analysed self-help in a new way, making it more difficult to avoid secondary pickets.