The new law clarifies the complaint procedure employees must undertake when seeking to appeal a disciplinary penalty imposed by their employer, or dismissal following an internal employment disciplinary process by introducing a set process which must be followed by the parties. The new law further establishes the Labour Disputes Settlement Committee which has exclusive authority to resolve labour related disputes. The committee comprises of a Court of First Instance judge together with two additional elected members, the details of which are yet to be released. Moving forwards, all new disputes are required to follow the new procedure laid out under the law.
As from 1st of January 2018 minimum remuneration for work shall be 2100 PLN gross and minimum rate for one hour of freelance work shall be no less than 13,70 PLN/h gross.
As per the provisions of law concerning social security contributions in case of freelance work for employer or freelance for third party however in favor of an employer, the remuneration resulting from freelance work shall be treated as remuneration resulting from an employer. As per the Supreme Court’s sentence because of the fact that relationship between parent and subsidiary company is very close and fact that vat invoices for services were issued by parent company for subsidiary – this scheme was treated as a proof that separation of contracts was performed only for purposes of avoidance of social security contributions.
The new Act on gender equality and discrimination will gather all the Acts on discrimination and gender equality into one Act. The Act will apply to all areas of society. The definition of sexual harassment will be changed to be based upon more objective criteria. The restriction on what information employers may gather from job seekers is extended. Employers may not ask job seekers about pregnancy, adoption and plans to have children, ethnicity, religion and beliefs, disabilities, sexual orientation, gender identity and gender expression. The Act will also open up for a higher degree of special treatment of men for the purpose of gender equality.
On December 7, 2017, Senators Tereso Medina and Isaias Gonzalez submitted a bill for the Senate’s approval which creates the Federal Institute for Conciliation and Labor Registrations and amends several provisions of the Federal Labor Law, the Federal Law of Government-controlled Entities, the Organizational Law of the Federal Public Administration, the Social Security Law and the Law for the Institute of the National Fund for Worker Housing’s Law. This bill derives from the Constitutional Reform on Labor Justice that came into effect on February 2017.
If approved by the Senate, the bill will be passed to the Chamber of Representatives for its review.
The Ministry of Labor and Social Welfare is working on a project to create the National Agency on Health and Safety at the workplace which purpose is to strengthen the actions to prevent work hazards and protect the employees while performing their duties.
The proposal comprises the creation of this Agency, where the ruling function currently held by the General Directorate on Health and Safety at the workplace is intended to remain and get stronger, together with the federal inspection associated with this topic.
In addition, the federal inspection will be specialized through the creation of two inspection bodies: one focused in general employment conditions and the second will monitor the provisions on health and safety. With these measures the professionalization of inspection bodies is pursued.
On November 24, 2017 it was published in the Official Gazette a resolution of the Board of Representatives of the National Commission for Minimum Wages (CONASAMI) according to which the minimum general daily wage was increased to Mx $88.36 pesos starting on December 1, 2017.
CONASAMI resolved that the minimum general daily wage will be integrated by three components: first, the general minimum daily wage in force from January 1 to November 30, 2017, Mx $80.04 pesos daily; second, the Independent Recovery Amount (MIR), Mx $5.00 pesos daily and, third, a 3.9% increase over the last two components, Mx $3.32 pesos daily, what results in Mx $88.36 pesos daily as the minimum amount that the employees must receive in exchange per daily work journey.
Moreover, the minimum professional wages that will come into effect since December 1, 2017 will be those in force from January 1 to November 30, 2017, increased in 3.9%.
According to the new strategy for gradual and sustainable recovery of the general minimum wage, CONASAMI’s Board of Representatives determined that if during the first quarter of 2018 there are favorable economic conditions that so justify, it will review the general minimum daily wage that started having force on December 1, 2018 and that will continue in effect on January 1, 2018, through the IRA method.
The general principle already applying under current data protection law remains unchanged under the new GDPR: collecting, using and transmitting personal data is prohibited unless expressly permitted by law, a works agreement or a collective bargaining agreement. Furthermore, it will still be possible for an employee to give his/her consent to the collection, use or transfer of his/her personal data.
However, please note that consent given under the current BDSG will only remain valid under the new GDPR insofar as such consent already meets the requirement of the GDPR. Unlike the current BDSG, the GDPR contains concrete requirements that need to be fulfilled on order for such consent given by the employee to be valid. These requirements will be incorporated into the new BDSG. In particular, the employer has to explain the purpose of the consent to the employee and inform him/her about his/her right to revoke said consent. Both needs to be done in text form. Due to these changes, existing declarations of consent submitted by employees should be reviewed for compliance with the GDPR and the new BDSG as of 25 May 2018.
Companies should further note that infringements of data protection provisions will be punished more severely under the GDPR and the new BSDG. The scope for setting fines will be increased to fines of up to EUR 20,000,000, for companies with worldwide revenue of at least EUR 500,000,000 the fine may even amount to 4 % of their worldwide revenue.
The employee’s right to information will also be significantly extended. Employees may request information from their employer as to whether personal data on him/her is being processed and if so, which data exactly. It is, therefore, highly recommended to evaluate whether the current company data processing is in accordance with the new regulations.
With the reform of the MuSchG, its scope of applicability has been extended. Apprentices, interns as well as students doing an obligatory internship and self-employed women, who can be compared to employees, will enjoy the protection of the new MuSchG.
Under the current MuSchG, pregnant employees enjoy special protection against dismissal during the pregnancy and for four months after the birth. From 1 January 2018 onwards, women suffering a miscarriage after the 12th week of pregnancy shall also be protected against termination for the next four months. Terminating an employee during the time of special protection against dismissal will only be possible in exceptional cases. Prior permission has to be obtained from the competent state authority. Under the new MuSchG, the prohibition of termination shall also apply accordingly for preparatory measures. Although it is not entirely clear what measures are included, this will certainly apply to any measures directly linked to the anticipated termination, e.g. consultation of the works council. Extending the prohibition of termination to preparatory measures is, therefore, likely to extend the duration of the termination process.
The maternity leave period, which is currently the time period 6 weeks before and 8 weeks after giving birth, was extended to 12 weeks after the birth in case of multiple births, premature births and disabled children.
The prohibition of night work will be slightly loosened under the new MuSchG. As a general rule, working between 8 p.m. and 6 a.m. remains prohibited for pregnant or nursing women. However, from 1 January 2018 on, exceptions of the prohibition of night work will no longer be exclusively possible for certain industries, but for all industries. Work between 8 p.m. and 10 p.m. will be permissible if the employee expressly agreed and prior authorization was obtained from the competent supervisory authority. Work after 10 p.m. will, however, only be permissible in exceptional cases.
Under the new MuSchG, the employer is obligated to carry out a risk assessment for each work conducted within the company, not only for work done by pregnant employees. Necessary measures to protect pregnant employees must be implemented immediately after the employer was made aware of a pregnancy and the employee must be offered a conversation on (further) adjustments of her working conditions.
In the last years it became more and more popular for foreign companies to send workers to Austria to fulfil domestic orders. In this case, it is an essential question for the company, if a certain service is to be determined as a service contract, or a hiring-out of workers, as the result may have quite an essential legal impact.
Up until now, the Austrian Supreme Administrative Court had a very strict understanding of the wording of the Austrian Law on the hiring-out of workers (Arbeitskräfteüberlassungsgesetz – “AÜG”), where the law defines whether the hiring-out of workers exists. This is set out in Paragraph 4 of the AÜG, which has four specific criteria to describe hiring-out. So far, the court used to qualify a certain service not as contract for services but as hiring-out, if only one of these four criteria was fulfilled by the underlying facts.
Based on the Judgement of the European Court in the case Martin Meat vs Géza Simonfay and Ulrich Salburg (C-586/13) this jurisdiction could not be held up any more. The central question of this European Court decision was, based on what criteria it is to be determined whether a service is to be hold as cross-border hiring-out or just a contract of service, based on the Posting of Workers Directive. As a result it can be said that the former VwGH jurisdiction was too strict and resulted in many cases being determined as hiring-out.
In its latest decision, the VwGH adopted this new and corrected understanding. The court held, that now the underlying facts need to be assessed based not only fulfilling one of the four criteria set out in paragraph 4 of the AÜG, but on an overall consideration. So far, these new rules only relate to cross-border situations, and it is not yet clear whether a domestic case would be solved in the same way.