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India: Formation of trade union for technology sector

This is a significant development for the millions of information technology employees based in Bangalore. The employees of the information technology sector in India have been facing significant issues in the form of layoffs due to automation, longer working hours and absence of overtime wages, among other reasons. Now, the employees have the opportunity to approach the trade union to voice their various concerns. Having said that, the information technology companies will need to be cautious in their approach towards the employees and the implementation of employee-specific policies.

For more information on these articles or any other issues involving labour and employment matters in India, please contact Avik Biswas, Partner at IndusLaw (www.induslaw.com) at avik.biswas@induslaw.com

France: The social security ceiling will likely be set at 3,311 € per month in 2018

The Social Security ceiling is the maximum amount of remuneration or earnings to be taken into account for the calculation of certain contributions. Its amount is revalued each year. It should be set at € 3,311 per month in 2018 (€ 39,732 per year) by decree that is yet to be issued.

This ceiling is used as a basis for calculating certain benefits and for calculating entitlements (supplementary pension, employee savings, etc.). Its increase bears important consequences. In addition, new methods for determining the social security ceiling will come into effect on 1 January 2018.

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

China: Circular on Promoting Relevant Reformation Initiatives in Support of Innovation Is Released

The General Office of the State Council released the Circular on Promoting Relevant Reformation Initiatives in Support of Innovation (the “Circular”). According to the Circular, the State Administration of Foreign Experts Affairs and the Ministry of Human Resources and Social Security will handle the application and issuance of all foreigners’ work permits in one window. Pursuant to the Circular, international students are encouraged to start their own business in China and will enjoy preferential treatment in terms of work permit and residence permit application. In the eight reform pilot zones, new market-oriented ways, in connection with salary and tax payment, will be adopted in addition to the existing policies on permanent residence. This means foreigners may apply for permanent residence status in China if they meet the thresholds in respect of salary, tax payment, years of service, etc. From the perspective of application procedures, the work type residence permit is able to be directly changed into a permanent residence permit, if the aforementioned thresholds have been proved to be met.

For more information on these articles or any other issues involving labour and employment matters in China, please contact Carol Zhu, Partner at Zhong Lun Law Firm (www.zhonglun.com) at carol.zhu@zhonglun.com

Canada: Recent Sexual Misconduct Allegations in the Entertainment Industry a Reminder to Employers of the Obligation to Protect Employees from Workplace Sexual Harassment.

Recently, the highly publicized sexual misconduct allegations against Harvey Weinstein have led to a public dialogue about sexual harassment and sexual assault. In the wake of the allegations against Mr. Weinstein, actress Alyssa Milano posted on Twitter “…If all the women who have been sexually harassed or assaulted wrote “Me too” as a status, we might give people a sense of the magnitude of the problem”. Within days, millions of women and men came forward and published messages using #MeToo and similar hashtags.

In the employment context, these recent events serve as a reminder for employers of the prevalence of sexual harassment and the importance of taking reports of sexual harassment seriously. To begin with, it is important that employers know their legal obligations. In Ontario, the Occupational Health and Safety Act (the “OHSA”) requires that employers take every precaution reasonable in the circumstances for the protection of a worker. The OHSA’s definition of workplace harassment specifically includes workplace sexual harassment. The OHSA requires employers to prepare a policy with respect to workplace harassment, as well as a program to implement the policy.

It is recommended that an employer’s policy include examples of the types of behaviours that may constitute workplace sexual harassment (in addition to including the definition set out in the OHSA) to help employees better understand what workplace sexual harassment is and properly identify problematic behaviour in the workplace.

The program that accompanies the policy must include reporting procedures, how to make a complaint when an employee’s supervisor is the alleged harasser, how the employer will investigate and deal with complaints, how information obtained in the investigation process will be kept confidential (unless the disclosure is necessary for the purpose of the investigation or taking corrective action, or is otherwise required by law), and how the complainant and alleged harasser will be informed of the results of the investigation and any corrective action. Employers must also provide employees with instruction on the contents of the policy and program.

When a complaint is raised, the OHSA expressly requires that employers conduct an investigation that is appropriate in the circumstances. The phrase “appropriate in the circumstances” is not defined in the legislation, but suggests that employers may be liable if they fail to properly investigate a complaint of workplace harassment. It is important that employers take complaints seriously, investigate complaints in a timely manner, and implement appropriate corrective action where warranted. Employers are also expressly prohibited from actually or threatening to dismiss, discipline, impose a penalty against, or intimidate or coerce an employee because the employee has made a complaint or otherwise sought enforcement of the OHSA.

Particularly with the holiday party season fast approaching, it is important that employers be aware of their legal obligations, have the appropriate measures in place to protect employees from workplace sexual harassment, and appropriately respond to problematic behaviour in the workplace and at work related events. Employers are encouraged to consult with local labour and employment counsel in order to have their existing policies and programs reviewed for compliance with applicable federal or provincial health and safety and/or human rights legislation regarding workplace sexual harassment.

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

Canada: Random Workplace Drug and Alcohol Testing Justified in Some Situations

In Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (“Suncor”), the Court of Appeal of Alberta considered random drug and alcohol testing that had been introduced by Suncor in 2012 for its employees in safety-sensitive positions. Unifor grieved the alleged infringement of its members’ privacy rights. The majority of an arbitration panel ruled in favour of Unifor. Suncor applied for judicial review of the arbitration decision. The reviewing court held that the arbitration decision was unreasonable and sent the matter back for reconsideration by a new arbitration panel. Unifor appealed the judicial review decision.

The Court of Appeal relied on the leading Supreme Court of Canada decision of Irving Pulp & Paper Ltd. v CEP, Local 30,  2013 SCC 34, in which the Supreme Court held that a dangerous worksite, in and of itself, is not sufficient to justify random drug or alcohol testing in a workplace given the privacy concerns inherent in same. What is additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.

In Suncor, the parties disputed the extent to which drugs and alcohol were a problem at the workplace. The arbitration decision held that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing.

On judicial review, the reviewing court determined that the arbitration decision was unreasonable on several grounds. On appeal of the judicial review, the Court of Appeal focused on one ground, and determined that the majority of the arbitration panel unreasonably narrowed the inquiry into whether a drug and alcohol problem existed, by focusing on the bargaining unit rather than the overall workplace. It was unreasonable for the arbitration panel to insist upon “particularized “evidence specific to unionized employees. This set the evidentiary bar too high.

The key takeaway for employers is that whether random drug and alcohol testing is justified in a safety sensitive workplace is an issue that will be assessed on a case-by-case basis. To justify such testing, an employer must be able to establish evidence of a general problem with alcohol and drugs in the workplace, or some other specific safety risk. However, the employer will not necessarily be required to adduce evidence of the problem specifically in relation to the bargaining unit.

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

Brexit

Brexit: The UK is due to leave the European Union from 29 March 2019, having triggered Article 50 in March this year. With recent leaked Home Office documents, the UK’s initial detailed proposal to the EU and the Theresa May speech in Florence on 22 September, the future UK immigration landscape is starting to take shape. In Florence, the Prime Minister emphasised that freedom of movement will continue for a transitional/implementation period until at least 29 March 2021 and that EU nationals who arrive in the UK after the specified date will be subject to mandatory registration in some circumstances. The current indication from the UK is that EU nationals who enter the UK for 3-6 months will not need to do anything, but beyond that initial period the indication is they will need to apply for residence permits valid for up to 2 years, or 3-5 years if the applicant has a job offer in a sufficiently skilled role. The EU will no doubt be seeking to rein in the UK and aim for less onerous requirements on EU nationals. Hopefully, there will be more clarity on the UK’s proposals when the official version of the leaked Home Office document is released in “late Autumn” this year and as Brexit negotiations ramp up. Whilst much is still up in the air and the UK and EU continue negotiations in uncertain times, our advice to employers is there is much that they can be doing now to try and protect their and their EU national employees’ positions. Applications can include those for registration certificates and permanent residence and employers can seek to show support and updates/briefings to their EU workforce in these times of change.

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

Pensions: auto-enrolment update

The duty on employers to automatically enrol workers and employees working in the UK into qualifying workplace pensions was introduced in October 2012. New rules have been introduced which mean that start-up businesses first paying PAYE from 1 October are under a legal duty to put staff straight into a workplace pension as soon as they employ them. Other auto-enrolment changes are in the pipeline too. This will be relevant for foreign companies setting up a business or branch in the UK.

Further information about this can be found here:
https://www.clydeco.com/blog/the-hive/article/workplace-pensions-and-new-start-ups

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

Gender pay reporting update

Employers who are subject to the gender pay reporting requirements have until 4 April 2018 to publish their gender pay figures, based on a ‘snapshot’ of the picture as it was on 5 April 2017 – and must publish further figures annually thereafter.

At the time of writing, six months on, 123 employers have reported their gender pay figures on the UK government sponsored website set up for this purpose. We have analysed the information published so far, what the data shows, the reasons given by employers for pay gaps, and what they say they are doing to close them.

Our analysis and more details of the gender pay reporting requirements are available here:
https://www.clydeco.com/blog/the-hive/article/mind-the-gap-our-analysis-of-the-gender-pay-gap-data-reported-so-far

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

New offence of corporate failure to prevent tax evasion

On 30 September 2017, legislation came into force which created two new offences of corporate failure to prevent the facilitation of UK or foreign tax evasion. The aim of the legislation is to make it easier to convict organisations (including companies and partnerships) in relation to the facilitation of tax evasion by their employees or associated persons, and encourage them to put in place reasonable preventative measures. There is a defence available where the organisation can show that either it had in place reasonable preventative procedures or that it was not reasonable in the circumstances to have any such procedures in place. This may include measures such as including specific contractual requirements in employment contracts that employees do not engage in tax evasion and putting in place a policy in relation to the prevention of the facilitation of tax evasion.

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

Spain: If an employee submits resignation by using Whatsapp, is it valid?

An employee communicated the denial of the Permanent Disability he requested to the National Institute of Social Security, as well as his intention to not come back to his job place by using Whatsapp.

After sending several communications to the employee (in which the company asked him to come back his work place) the corporation considered employment relationship finished by the employee’s tacit resignation.

The employee filed a claim for the dismissal before the Social Court which declared the dismissal unfair; therefore the company challenged such decision to the High Court of Justice of Madrid.

The discussion was to determine whether the employee’s conduct and Whatsapp’s demonstrations constitute tacit resignation.

The High Court of Justice of Madrid declared that in order to validate tacit resignation, it is enough if employee’s behavior unmistakably shows will to finalize employment relationship.

In this dispute, the employee clearly had communicated to the company, by using the Whatsapp application, his will to not return to his work place, by texting expressions like “I cannot come back”, “do what you must do”, “I’m sorry, I will not come back”. Likewise, he did not respond to successive burofax the company sent him requesting justification of his absences, and warned not returning would lead to his dismissal by resignation. All this statements indicated the intention of the employee to not return to work.

Therefore, the High Court of Justice of Madrid considered the company’s decision fair, as the Court understood the employee stated a resignation, and estimated the company’s appeal presented to the High Court of Justice of Madrid.

For more information on these articles or any other issues involving labour and employment matters in Spain, please contact Bufete Suárez de Vivero, S.L.