Employment & Benefits updates

Australia

Contributed by Lander & Rogers
Understand your company's values to ensure that its culture thrives
  • Australia
  • 12 September 2018

Employees will not come forward and report troubling behaviour if they fear retaliation. There are a number of steps that employers can take to create an atmosphere of trust and candour, which will help to reassure employees that they can, and should, voice any concerns.

First racial discrimination prosecution from Fair Work Ombudsman
  • Australia
  • 01 August 2018

The Fair Work Ombudsman (FWO) has persuaded the Federal Circuit Court that the underpayment of two migrant employees by a Tasmanian hotel was deliberate, exploitative and discriminatory in its first racial discrimination prosecution under Part 3-1 of the Fair Work Act. The decision demonstrates the FWO's appetite to use all of the tools at its disposal to pursue employers which take advantage of employees.

What HR needs to know about modern slavery legislation
  • Australia
  • 25 July 2018

The Modern Slavery Bill 2018 (NSW) has received assent, making the Modern Slavery Act 2018 (NSW) the first of its kind in Australia. The act addresses the findings and recommendations in the report on the inquiry into human trafficking in New South Wales, which left little to the government's imagination about the prevalence of modern slavery in New South Wales and throughout Australia.

Got the gig? Worker classification in gig economy heats up
  • Australia
  • 18 July 2018

The line between employee and contractor continues to be blurred in the gig economy. To avoid litigation, companies must determine how to classify workers. The Fair Work Ombudsman has launched legal proceedings against a food delivery business, Foodora, on the basis that it treats its workers as independent contractors rather than employees. While the gig economy awaits the outcome of the case, what should employers be doing in the meantime?

Visual contracts and pitfalls of employment agreements
  • Australia
  • 27 June 2018

Visual contracts, in which an employment agreement is conveyed partially or wholly by pictures, are now a thing – but what are their benefits and risks? In addition to concerns over certainty and variation, there are a number of key issues that businesses should consider before getting out the watercolours to update their employment agreements.


Austria

Contributed by Graf & Pitkowitz Rechtsanwälte GmbH
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.

Blue-collar and white-collar employees – sweetening the deal
  • Austria
  • 06 December 2017

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.

Up in smoke: new law favours non-smokers in pub over workplace
  • Austria
  • 04 October 2017

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.


Brazil

Contributed by Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados
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.

Outsourcing and impact of labour reform
  • Brazil
  • 08 November 2017

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.


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
Student working conditions: beware of disparities
  • Canada
  • 19 September 2018

The Quebec Human Rights Tribunal recently held that student status and the fact that students work during the summer to pay for their studies must be equated to a social condition protected under the Quebec Charter of Human Rights and Freedoms. According to the tribunal, a collective agreement clause that allocates a lower wage to students could constitute discriminatory treatment because it represents a distinction based on two prohibited grounds of discrimination: social condition and age.

Court finds employees justified in rejecting third party's offer of employment
  • Canada
  • 12 September 2018

Employees in common law provinces who are offered a job in the sale of business context may not necessarily be required to accept or be subject to a maximum common law notice period. The Ontario Superior Court of Justice has determined that there is no upper limit on notice periods and that the duty to mitigate does not require employees to accept employment with a purchaser of a business where the offer would significantly affect them going forward.

Get it right: contracting out of common law notice
  • Canada
  • 05 September 2018

Since the Supreme Court decision in Machtinger v HOJ Industries Ltd, it has been well established that employers in common law provinces can contractually limit the amount of common law notice or pay in lieu to which an employee may be entitled on termination. However, the case law on drafting such clauses is ever evolving and the courts are wary of enforcing these provisions, except in the clearest cases.

Workplace violence: are you prepared?
  • Canada
  • 29 August 2018

Workplace violence is a serious concern for employees and employers alike. Employees expect safe workplaces and employers have a concomitant duty to ensure their safety. Therefore, it is critical for employers to understand how to minimise workplace violence and respond if it arises. Syncrude's handling of this situation in Belyea v Syncrude Canada Ltd is exemplary and offers key lessons on how to address workplace aggression.

Reducing workers' compensation costs through appeals makes good business sense
  • Canada
  • 22 August 2018

The Canadian workers' compensation system is funded entirely through employer premium payments. Generally, employers which have more claims or claims that have higher associated costs will pay additional monies to their respective compensation board in the form of increased premiums or premium surcharges. As such, employers should establish an effective health and safety management system to prevent work-related injuries and illnesses in the first place and actively manage claims should they occur.