Employment & Benefits updates

Australia

Contributed by Lander & Rogers
Crucial work health and safety lessons from Klooger ruling
  • Australia
  • 19 December 2018

The Fair Work Commission's recent decision in Klooger will undoubtedly be the subject of considerable analysis as the developing gig economy forces employers to ask what employment in Australia will look like in 2019. The commissioner's comments clearly show that an approach to work health and safety which actively seeks to circumvent such obligations may lead courts and tribunals to more willingly characterise gig economy engagement models as traditional employment relationships.

Employee termination payments: how long do you have to pay?
  • Australia
  • 12 December 2018

In its four-yearly review of modern awards, the Fair Work Commission has varied nearly all modern awards to require that employers make termination payments within seven calendar days of the effective date of termination. Employers should be aware of the requirements for termination payments, which now appear in the majority of modern awards, and amend their employee exit procedures accordingly.

Christmas party scandal: Fair Work Commission upholds dismissal of glass-throwing employee
  • Australia
  • 05 December 2018

The Fair Work Commission recently made a significant decision on out-of-hours conduct in finding that ALDI had had a valid reason to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function. The case emphasises that while employers have a responsibility to maintain appropriate standards of behaviour at work functions where alcohol is present, employees also have an obligation to act within reasonable limits.

What happened to casual employment? A look at WorkPac v Skene
  • Australia
  • 28 November 2018

A recent Full Court of the Federal Court decision has set off alarm bells for employers that engage casual workers. The court found that a 'fly-in, fly-out' worker was not a casual employee despite being employed as one. Accordingly, the employee was entitled to annual leave – a benefit not otherwise available to casuals. This decision raises many significant questions and issues, going to the very nature of what makes casual employment relationships 'casual'.

Sweetheart, let's talk about gendered language
  • Australia
  • 21 November 2018

While using terms like 'sweetheart' and 'babe' in the workplace may come from a friendly place, they may cause female staff to feel undervalued and could land individuals in hot water. It should go without saying that using terms like 'chicks' and 'babes' to refer to female colleagues and employees is inappropriate. But what about 'ladies', 'girls', 'sweetheart' or 'love'?


Austria

Contributed by Graf & Pitkowitz Rechtsanwälte GmbH
Strikes and right to strike
  • Austria
  • 12 December 2018

It is widely understood that the Austrian concept of 'social partnership' (ie, the system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations. The social partnership recently agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be forthcoming.

Good Friday and direct discrimination on religious grounds
  • Austria
  • 03 October 2018

Under Austrian law, Good Friday is a paid public holiday only for members of four churches. An employee who belonged to none of these churches took issue with this and sued his employer. The case eventually reached the Supreme Court, which requested a preliminary ruling by the European Court of Justice (ECJ). In his recently issued opinion, the ECJ advocate general delivered what will likely also constitute the court's position on the matter.

Parliament passes new Working Time Act
  • Austria
  • 18 July 2018

Parliament recently passed a new law that brings sweeping changes to the Working Time Act and will come into effect on 1 September 2018. The law – which was heavily debated in the media and caused much controversy among the 'social partnership' (the Austrian system for cooperation between the two sides of industry) – sets the stage for more flexibility in a changing work environment.

Employed or self-employed? Request an advance ruling!
  • Austria
  • 09 May 2018

Determining whether an individual is an employee or self-employed can be risky for both the contractor and engager. Often, no one knows exactly how to qualify an individual until the national insurer claims arrears in social security payments in the wake of an audit. The parties involved hardly ever have legal certainty in advance. The Social Security Determination Act aims to change that.

Accurate and complimentary – difficult standard for recommendation letters
  • Austria
  • 07 February 2018

Under Austrian law, a recommendation letter must be truthful and cannot contain language that would aggravate the professional advancement of the employee. When truthfulness would result in less than lavish praise, employers must resort to a short-form recommendation letter, devoid of any information beyond the type of work performed and the duration of employment. This alternative, although accurate in its lack of praise, can aggravate an employee's career prospects.


Brazil

Contributed by Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados
First impressions: labour reform one year on
  • Brazil
  • 07 November 2018

Almost one year on from the enactment of Law 13467/17 (the labour reform), early feedback suggests that the reform has proved to be an effective and positive change. In particular, the reform has increased the use of remote workers, reduced the imbalance of power between employers and employees, made union contributions voluntary and reduced the number of labour-related lawsuits.

Supreme Court upholds labour reform's ban on mandatory union contributions
  • Brazil
  • 12 September 2018

When the labour reform came into force, it amended the provision requiring employees to pay annual contributions to relevant unions, instead making union contributions optional. After the reform was enacted, more than 15,000 lawsuits were filed to challenge union contribution-related matters. The Supreme Court recently ruled that the end of mandatory union contributions was constitutional.

Arbitration now permitted for employment disputes
  • Brazil
  • 18 July 2018

The recent labour and employment reform enacted in Brazil has introduced important changes to labour and employment relations. One of the principal changes is the introduction of arbitration for the resolution of employment disputes. Although the changing law requires a change of mindset, employers should take advantage of it and begin to consider the possibility of instituting arbitration for certain employment contracts.

How to avoid overtime costs: overview of compensatory time off agreements
  • Brazil
  • 23 May 2018

In Brazil, employees who work overtime are entitled to statutory premium pay at one-and-one-half times the regular rate. In the past, the courts often voided compensatory time off agreements and granted overtime payment claims to employees on the grounds that their employer had failed to comply with legal requirements. However, the 2017 labour reform introduced more flexible requirements, which should curb litigation on compensatory time off agreements and encourage their use.

Impact of labour reform on awards paid to employees
  • Brazil
  • 07 February 2018

The discussion regarding the legal nature of awards is not new to Brazilian labour courts, especially because amounts paid as awards could be considered salary, obliging the employer to include the award in the employee's salary and pay him or her every month or include this amount as a basis for determining the employee's labour rights. The legislative branch has tried to clarify this matter, defining the legal nature of awards, as well as the concept and legal criteria for their application.


British Virgin Islands

Legislation to change work permit fee calculation enacted
  • British Virgin Islands
  • 09 August 2017

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.


Canada

Contributed by Fasken
Bill 47 passes but more changes to come following Bill 57 and 2018 FES
  • Canada
  • 19 December 2018

The new provincial government has been active in reshaping provincial employment and labour laws and responsibilities. In addition to passing Bill 47, the Making Ontario Open for Business Act 2018, the government has filed new regulations which will lower penalties for contravening the posting and record-keeping requirements of the Employment Standards Act. Further, the government's 2018 Fall Economic Statement outlines several initiatives and pledges which will be of interest to Ontario employers.

Breaking up is hard to do: court awards more than C$112,000 to employee terminated for breach of trust
  • Canada
  • 12 December 2018

A recent British Columbia Supreme Court's decision is a cautionary tale for employers that terminate employment first and ask questions later. It is a reminder that failure to conduct a proper investigation into employee misconduct can undermine an employer's case for termination for cause. When considering the appropriate level of discipline, employers should consider all mitigating and aggravating factors before deciding on the appropriate discipline.

Fixed-term contracts: friend or foe?
  • Canada
  • 28 November 2018

The requirement for employees to mitigate their damages following termination is generally helpful for employers during wrongful dismissal litigation, but this may not be the case when it comes to fixed-term employees. Employers that wish to use fixed-term employment agreements should ensure that they have airtight early termination provisions in their contracts and consider specifically obliging employees to mitigate.

A change in winds for federal unjust dismissal and reprisal complaints
  • Canada
  • 21 November 2018

Recent amendments to the Labour Code, brought about by Bill C-44, have been overshadowed by the dramatic changes to provincial labour and employment laws earlier in 2018. While big changes – including a significant increase in minimum wages in several provinces – have garnered the most attention, federally regulated employers must consider the code's amendments, which will affect the way in which certain complaints brought against such employers are launched and adjudicated.

Federal government introduces new pay equity and labour standards
  • Canada
  • 14 November 2018

The federal government recently introduced Bill C-86, the Budget Implementation Act 2018. In addition to introducing long-anticipated pay equity legislation, the proposed legislation would make significant changes to the labour standards in Part III of the Canada Labour Code. Some of the proposed changes are unsurprising given the government's past statements. Other changes are unexpected and, if enacted, would have a major impact on both non-union and unionised employers.