Impending Changes of Legislation

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France: Macron’s reform deemed constitutional by the Conseil Constitutionnel

President Macron’s rewriting of the French labour code has entered a decisive phase: its inscription into law. On March 21, the Conseil Constitutionnel approved nearly all the ordinances that the executive signed in September of last year, overhauling many labour and employment rules.

Up to now, these ordinances only had a regulatory value, but they will now be upgraded to laws.

The Conseil Constitutionnel did strike out some marginal points of the reform. Notably, it censured the waiver that allowed employers not to hold by-elections for empty seats on the social and economic committee when the previous elections had been cancelled due to an imbalance in representation between men and women.

As a reminder, the reform is already effective. It will now remain so, but after this validation by the Conseil Constitutionnel, and its ratification by the executive on March 29, it will have a stronger form as law.

For more information on these articles or any other issues involving labour and employment matters in France, please contact Joël Grangé, Partner at Flichy Grangé Avocats (www.flichygrange.com) at grange@flichy.com

Canada: Workers who receive legal medical assistance in dying as a result of a work related injury or disease will be deemed to have died as a result of the work related injury or disease.

In response to the passage of federal Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), the Government of Ontario enacted Bill 84, the Medical Assistance in Dying Statute Law Amendment Act, 2017 (“Bill 84”).

Bill 84 amended the Workplace Safety and Insurance Act, 1997 to provide that a worker who receives medical assistance in dying is deemed to have died as a result of the injury or disease for which the worker was determined to be eligible to receive medical assistance in dying, if the medical assistance in dying was provided in accordance with federal law.

The Bill 84 amendments to the Workplace Safety and Insurance Act, 1997 took effect on May 10, 2017.

On April 5, 2018, the Workplace Safety and Insurance Board (the “WSIB”) published a new policy, entitled “Medical Assistance in Dying”. The new policy provides that if a worker receives medical assistance in dying as a result of a work related injury or disease in accordance with federal and provincial law, the worker will be deemed to have died as a result of the work related injury or disease.

A worker who receives medical assistance in dying as a result of a work related injury or disease in accordance with federal and provincial law will generally be entitled to WSIB health care benefits and/or services. Further, the survivor(s) of a worker who legally qualifies for medical assistance in dying as a result of a work related injury or disease will generally be entitled to WSIB survivor benefits.

The policy provides guidelines for those cases where an injured worker who receives medical assistance in dying also has a non-work-related condition which may have impacted his or her eligibility for legal medical assistance in dying.

The new policy applies to all decisions with respect to entitlement periods on or after April 5, 2018, for accidents on or after January 1, 1998.

For more information on these articles or any other issues involving labour and employment matters in Canada, please contact Robert Bayne, Partner at Filion Wakely Thorup Angeletti (www.filion.on.ca) at rbayne@filion.on.ca

UK: Trade Secrets Directive

Draft Regulations which will implement the EU Trade Secrets Directive have been published and are expected to come into force by 9 June 2018. The Regulations include a statutory definition of “trade secret” and provide for trade secret cases to be held in private, with limited access to the confidential documents in the case, set out the factors to be considered when awarding compensation, and impose limitation periods for trade secret cases. The Regulations do not make any changes to the rules around post-termination restrictive covenants, which remain a matter for UK national law.

For more information on these articles or any other issues involving labour and employment matters in United Kingdom, please contact Robert Hill, Partner at Clyde & Co (www.clydeco.com) at robert.hill@clydeco.com

UK: Changes to taxation of termination payments

From 6 April 2018, the distinction between contractual and non-contractual payments will be removed so that all payments made in lieu of notice on termination of employment, regardless of whether there is a contractual entitlement, will be subject to income tax and NICs. This means, broadly that:

  • Contractual pay in lieu of notice (PILON) will continue to be treated as earnings and taxed accordingly
  • Where an employee has not worked their notice (or part of it), before termination, the employer must calculate the “post-employment notice pay” (PENP) by applying a statutory formula which broadly works out the basic pay which the employee would have earned over the unworked portion of the notice period
  • PENP is taxable as earnings and is subject to employer and employee NICs
  • The new rules apply only where employment terminates on or after 6th April 2018
  • Foreign service relief is abolished for UK resident employees (although new exemptions will apply for UK resident employees with foreign seafaring service).

From April 2019, Class 1A NICs (employer liability only) will be imposed for the first time on termination payments which exceed £30,000.

For more information on these articles or any other issues involving labour and employment matters in United Kingdom, please contact Robert Hill, Partner at Clyde & Co (www.clydeco.com) at robert.hill@clydeco.com

UK: Government responds to the Taylor Report

From confronting the challenges of the gig economy and modern ways of working, to enhancing employment protections and ensuring vulnerable workers receive their basic workplace rights, the UK government has set out in its ‘Good Work’ Report, the steps it plans to take to ensure all work in the UK economy is “fair and decent, with the realistic scope for development and fulfilment”.

The proposals include providing all workers with “day-one” rights, extending the qualifying period for continuous service, introducing harsher penalties for employers that fail to comply with employment legislation, and introducing an online tool to help workers determine their employment status.

The government considers many of the proposals need further consultation, so it has launched four separate consultations: employment status; the enforcement of employment rights; agency workers; and measures to increase transparency in the UK labour market.

Draft legislation has been published fulfilling some of their commitments, including the right to itemised payslips for all workers and requiring payslips to show the number of hours being paid for workers paid by the hour.

For more information on these articles or any other issues involving labour and employment matters in United Kingdom, please contact Robert Hill, Partner at Clyde & Co (www.clydeco.com) at robert.hill@clydeco.com

UK: Employment Tribunals – quarterly statistics show a substantial increase in the number of Employment Tribunal claims brought

The latest Employment Tribunal quarterly statistics show that the number of claims brought by a single claimant in the period September to December 2017 was up 90% on the same period in the previous year. This is the highest increase in over four years and is likely to be explained by the abolition of Tribunal fees on 26 July 2017.

Since the abolition of Employment Tribunal fees, around 3,000 new cases have been lodged every month. This is significantly lower than the number of cases lodged before the introduction of tribunal fees, when the average was around 5,000 each month.

Since the launch in October 2017 of the Tribunal fees refund scheme for those who paid Tribunal fees before they were ruled to be unlawful, 4,800 applications for refunds were made. 3,400 refunds with a total value of £2.8m were paid out in the period to 31 December 2017.

For more information on these articles or any other issues involving labour and employment matters in United Kingdom, please contact Robert Hill, Partner at Clyde & Co (www.clydeco.com) at robert.hill@clydeco.com

UK: Annual increases in National Minimum Wage and maximum awards for unfair dismissal

From 1 April 2018, all UK National Minimum Wage and National Living Wage (NLW) rates will increase. The NLW which is paid to workers aged 25 and over is increasing to £7.83 (from £7.50).

From 6 April 2017, the maximum basic award for unfair dismissal and the maximum statutory redundancy payments will be capped at £15,240 (increased from £14,670), and the maximum compensatory award for unfair dismissal increases to £83,682 (from £80,541).

For more information on these articles or any other issues involving labour and employment matters in United Kingdom, please contact Robert Hill, Partner at Clyde & Co (www.clydeco.com) at robert.hill@clydeco.com

Romania: Teleworking is regulated for the first time in Romanian legislation

A new Law that defines and regulates teleworking was adopted early this March. For the first time working from a distance is recognized and regulated under Romanian Law. Employees that work from home or from any other place organized by the employer for working at a distance will establish an employment relationship and will enjoy all the benefits a regular employee has.

The teleworking, as it is named by the new Law, is a response for the need to regulate the situations where employees – especially in the IT industry, work from home. The need for a formal recognition for this type of work was recognized as the employees that work from home have to have their working hours monitored and have to be properly instructed in order to limit health and safety hazards that are out of the control of the employer otherwise. The employer is the one to organize the working space for the employee that will perform work at a distance and is allowed to set up the equipment in a manner that ensures the minimum risk for the employee.
Employees that work at a distance benefit from all the right the Law, the collective agreements, the internal regulations and policies grant all the regular employees.

The new Law also introduces a series of obligations and responsibilities for the employees. The employees that perform work at a distance are responsible for the way they conduct their activity, including limiting the health and safety risks, they have to monitor the equipment they are using in order to perform their work at a distance and inform the employer of any malfunctions.

For more information on these articles or any other issues involving labour and employment matters in Romania, please contact Magda Volonciu and Associates

Romania: Good Friday becomes a public holiday in Romania

According to a new Law the Romanian Labour Code was changed in order to include an additional public holiday. As of 2018 Romanian employees will have an additional day off, as Good Friday becomes a public holiday. Easter Monday and Easter Sunday are also public holidays.

As a rule, under the Romanian Labour Code, public holidays are no working days and employees that work during public holidays will receive time off as compensation or, in cases when the time off cannot be given within 30 days from the public holiday, a bonus that cannot be lower than 100% the wage for the entire duration of the work performed on the public holiday. This rule also applies to employees that work in shifts. Good Friday becomes the 15th public holiday recognised by the Romanian Labour Code.

For more information on these articles or any other issues involving labour and employment matters in Romania, please contact Magda Volonciu and Associates

Norway: New pension scheme for the public sector

The Labour Unions and the Ministry of Labour and Social Affairs have agreed on a new pension scheme for employees in the public sector. The new pension scheme for the public sector is adjusted to a model more similar to most pension schemes in the Norwegian private sector. The pension scheme in the Norwegian private sector is usually a defined contribution scheme, where the employer pays a certain percentage of the employee’s salary, to a pension fund. The current pension scheme in the Norwegian public sector is a defined benefit pension scheme, which gives the employee a certain percentage of their salary retiring. The government’s aim is to ensure employees in the public sector a pension scheme that is more sustainable, and that encourages employees to work for more years. The new pension scheme for the public sector aims at making it more favorable to work for more years, but to still accommodate those who have to retire early. The new pension scheme also aims to make it easier for employees in the public sector to switch to the private sector, without it affecting their future retirement pension negatively.

For more information on these articles or any other issues involving labour and employment matters in Norway, please contact Storeng, Beck & Due Lund (SBDL)