ASIA PACIFIC

  • Australia: Foreign off-shore workers subject to visa requirements

The Federal Court has determined that non-Australian employees who work on offshore resource projects are covered by the migration zone of Australia, and therefore are subject to visa requirements.  The status of such employees has been in dispute as the federal government attempted to provide (through a determination by the Assistant Immigration Minister) that such employees were not within the migration zone and therefore exempt from visa requirements.  The Federal Court found that determination was invalid, effectively restoring the former position.  It remains to be seen whether the government will take further action to address this issue.  

  • China: Employer fined RMB 200, 000 for submitting forged written employment contract in Beijing

It was reported recently that an employer was fined RMB 200,000 (approx. GBP 20,853) for submitting a forged written employment contract.  The contract was forged to defend a claim of double salary made by the employee based on the employer's failure to sign a written employment contract.

Although it is obvious that the court will never tolerate forged evidence, this is the highest penalty ever imposed in a labour case.  Previously, the courts have tended to impose small penalties, to reprimand the violator, or they have merely ignored the evidence without checking its authenticity, which means that there has been no real disincentive not to provide forged documents.  This case provides a positive indication of a move towards a more rigorous litigation environment.  

  • China: Minimum wage in Shanghai

It was announced in early April 2015 that the average monthly salary in Shanghai for 2014 was RMB 5,451 (approx. GBP 568) (inclusive of statutory social insurance and housing fund costs) which means that the cap on severance pay has now increased to RMB 16,353 (approx. GBP 1,704).   

  • China: Adjustment to Premium Rate of Unemployment Insurance

A recent Circular published by the Ministry of Human Resources and Social Security and the Ministry of Finance provides that, as of 1 March 1 2015, the premium rate of unemployment insurance is being reduced (temporarily) from its existing rate of 3% to 2%.  It is currently unclear for how long this change will be in force.  All local authorities are required to draw up plans for reducing the premium rate of unemployment insurance in their respective administrative divisions and to implement this as soon as possible.  As this insurance is generally funded by the employer, the change should reduce costs for many employers.    

  • Hong Kong: Revised Minimum Wage Rate

The revised Statutory Minimum Wage rate of HKD 32.5 per hour will come into force on 1 May 2015.  

  • Hong Kong: A Step Closer to Standard Working Hours

The Standard Working Hours Committee (SWHC) held its 11th meeting in March 2015 and further considered the findings of the dedicated working hours survey and the public engagement and consultation on working hours.  It was proposed by government advisers that there should be clear terms in all employment contracts stating the number of hours employees are expected to work and how employees should be compensated for overtime.  It was also agreed by the SWHC that Hong Kong should "walk in the direction of legislation in our working hours policy".  Employers in Hong Kong should continue to monitor developments in this area.  

  • Hong Kong: Employment Claims in the High Court

The Labour Tribunal is a specialised court set up to provide a simple, inexpensive and informal means of resolving employment disputes in Hong Kong.  The Tribunal has exclusive jurisdiction to deal with claims arising from a breach of employment contract or the failure to comply with the provisions of the Employment Ordinance or the Apprenticeship Ordinance.  The Labour Tribunal does not however, have jurisdiction to hear claims founded in tort, i.e. claims involving actions that are wrong such as negligence or conspiracy.  But what about "mixed claims" based on breach of contract of employment and tort? 

In their recent employment alert, Julia Gorham and Anita Lam of our Hong Kong practice, consider the recent case of Uferahal Limited v Hansen Larry Douglas, which held that the Labour Tribunal does not have jurisdiction to hear mixed claims.  Julia and Anita consider if employers can now bypass the Labour Tribunal by bringing a mixed claim in the High Court. Click here to read more.

EMEA

  • EU Wide: Information and Consultation of Workers: European Commission Launches Public Consultation on Consolidation of Three Directives

On 10 April 2015, the European Commission launched a public consultation with the Social Partners (selected representatives of employers and employees) at EU level in order to obtain their views on the possible consolidation of the EU Directives on collective redundancies, transfer of undertakings and information and consultation of workers.  The aim of the consolidation would be to strengthen the coherence and effectiveness of the existing EU legislation on worker information and consultation at national level.  The social partners' views and comments in response to the consultation are expected by 30 June 2015.  

  • EU Wide: Processing of Personal Data in the Context of Employment: Council of Europe Publishes Recommendation

On 1 April 2015, the Council of Europe published a recommendation of the Committee of Ministers on the processing of personal data in the context of employment. 

The Recommendation covers a number of topics including: -

™ minimisation of personal data in relation to employees 

™ limitations on the use of employee data to purposes connected solely with employment 

™ restrictions on the collection of sensitive data unless strictly necessary and/or in accordance with local law 

™ a requirement that genetic data should not be processed and that biometric data should be processed with appropriate technical and organisational safeguards 

™ limitations on the use of monitoring and tracking software 

™ limitations on the sole reliance on anonymous whistleblower reports for the purposes of an investigation 

™ a requirement that employers should not require employees to give access to social media accounts.

Note that although there is no legal obligation on employers to follow or implement this recommendation,  it provides useful guidance on the direction of EU legislation in relation to data protection in the work place.   

  • Italy: National Collective Bargaining Agreement for the Commercial Sector

In early April 2015, Italy's national trade union organizations and the national employers' association  renewed the national collective bargaining agreement for the commercial sector.

As well as other measures, the new agreement provides for an increase in the minimum wage, depending of the number of white collar employees, and the option for an employer - in specific circumstances - to ask employees to work additional hours in cases of exceptional business need.  

In a derogation from the ordinary legal position, the agreement also provides an option to hire individuals (who fall within the category of disadvantaged employees) under fixed-term contracts,  in order to give more flexibility to companies in specific circumstances.     

  • Netherlands: New maternity and paternity rights

New legislation regarding maternity and paternity leave came into force on 1 January 2015.  As a result of the changes:-   

  • Once the period of six weeks following the date of birth has elapsed, a mother may split her remaining maternity leave into separate parts.  In consultation with the employer, the employee can take separate periods of leave spread over a maximum period of 20 weeks. 
  • Maternity leave can be extended for a maximum period of 10 weeks in circumstances where  the baby is hospitalized. 
  • In addition to two days of paid paternity leave, the partner of a mother is entitled to three days of unpaid parental leave.  

 

  • Poland: Transfer of a Non-Compete Agreement to a New Employer

For many years there has been serious doubt as to whether a non-compete agreement concluded with a previous employer (transferor) transfers to the new employer (transferee) in the event of an automatic transfer under the business transfer regulations.  The regulation in this area under Polish labour law is somewhat ambiguous.

Until now, the prevailing opinion of legal practitioners and the labour courts was that the transferee need not conclude new non-compete agreements with the transferred employees.  However, in a recent decision, the Polish Supreme Court's position differed from this opinion.  The Court declared that the transferee is not bound by, and may not benefit from, a non-compete agreement concluded with the transferor, even if a non-compete clause was included in the employment contracts of the transferred employees.  

The Supreme Court is expected to issue a resolution on this matter shortly, which will finally resolve the dispute on the transfer of non-compete agreements between transferor and transferee in the context of a business transfer.  

  • South Africa: Surrogate Parent Entitled to Maternity Benefits 

The Basic Conditions of Employment Act, which regulates minimum leave entitlements, affords new parents very limited paternity leave (as a component of an annual allocation of four days' family responsibility leave) and four months' unpaid maternity leave.  There is no express limitation of the benefit of maternity leave to birth mothers, but many employers have interpreted this statutory obligation to extend only to female employees, and have refused male employees who become parents by way of adoption or surrogacy, the same benefits. 

The Labour Court has in a recent judgment (MIA v State Information Technology Agency (Pty) Ltd) determined that an employer policy, which excluded a male employee who became a father as a result of a surrogacy arrangement from paid maternity leave, was unfairly discriminatory under the Employment Equity Act.  The employer provided paid maternity leave for the full four months to female employees who give birth, and two months' paid maternity leave to employees who become adoptive parents to children younger than 24 months.  It offered the employee in question the latter benefit.  This was found to be a clear differentiation between employees on impermissible grounds (gender, sex, family responsibility and sexual orientation), and no grounds of justification existed.  Access to maternity leave benefits is not solely intended for the benefit of the birth mother, but is also intended to ensure the best interests of the child, as such full access to the same maternity benefits had to be extended to the applicant.    

  • UK/EU Wide: ECJ Decision in Key Collective Redundancy Consultation Case

As a result of the redundancies that followed the administration of the Woolworths chain of shops, in early 2014, the UK Court of Appeal referred to the European Court of Justice (ECJ) questions about when obligations to inform and consult on collective redundancies are triggered. Late last year, the ECJ heard legal arguments in the Woolworths litigation and two other related cases, Lyttle & Others v Bluebird UK Bidco 2 Limited and Cañas v Nexea Gestion Documental & Another.  DLA Piper is advising on the Lyttle case, which arose out of the collapse of the Bonmarché chain of clothing stores.  On 30 April 2015, the ECJ handed down its decision in the Woolworths case and has ruled in favour of employers; the outcome means that, in the UK, collective consultation is only required where an employer proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less; establishment meaning the local employment unit.   

  • UK: Mandatory Gender Pay Reporting

On 30 March 2015, the government passed a requirement for companies with over 250 employees to publish information about the pay difference between men and women.  The change does not have immediate effect, however, and will not do so until secondary legislation is in place, which must happen before 30 March 2016.  Once the law is enacted, affected employers will have a further 12 months to publish the pay difference information.  Employers are not recommended to take steps to comply yet, however, given the forthcoming general election in the UK.  It is possible that a new Conservative government would try to repeal the requirement, whereas a Labour led government would be likely to enact it.  If the requirement is enacted, employers are likely to have until at least September 2016 before they have to publish the information.  

  • UK: Final Employment Law Changes Implemented Before 7 May General Election

On 30 March 2015, the UK Parliament dissolved and a period of pre-election purdah began, meaning that the government is unable to make decisions or announce policies if they are likely to have significant effects or be politically contentious in the run-up to the election on 7 May.  However, a final round of employment law changes, enacted during the currency of the last Parliament, came into effect in early April 2015.  Click here to read more.

AMERICAS

  • Brazil: Immediate Action Needed by IT Companies in Sao Paulo to Open Mandatory Profit Sharing Negotiations 

The current collective bargaining agreement applicable to IT Companies based in São Paulo, signed on January 30, 2015 (CBA), includes an obligation for employers to send a request to the workers' union to open negotiations to establish a profit sharing plan, via e-mail or letter, by April 30, 2015.  The profit sharing arrangements do not need to be in place by the end of April, but the company must communicate with the union by then to indicate its openness to start negotiations.  Click here to read more.   

  • US: Proposed Rules on Resolving Disability Legislation and Employer Wellness Programmes

The Equal Employment Opportunity Commission (EEOC) recently issued proposed rules describing how the Americans with Disabilities Act (ADA) applies to employer wellness programs that form part of group health plans.  These proposed rules would be in addition to – and in some cases inconsistent with – regulations issued by the US Departments of Labor, Health and Human Services, and the Treasury in 2013 governing wellness programs under the Affordable Care Act.

While the Affordable Care Act encourages employers to offer wellness programs as a way to promote employee health and reduce insurance costs, the EEOC has nonetheless brought actions against three businesses claiming their wellness programs violated the ADA, alleging that excessive penalties or rewards made the programs mandatory.  Click here to read more about the EEOC's proposed rules.  

  • US: SEC Enforcement Action for Use of Improper Confidentiality Agreement

The US Securities and Exchange Commission recently caused shockwaves when it announced its first enforcement action against a company for using an allegedly improper confidentiality agreement during internal investigations.  The SEC viewed the language of the agreement as running afoul of its rule prohibiting “any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement… with respect to such communications.” Click here for more information about enforcement trends in the US and useful steps for employers to consider.