Ogletree Deakins International Employment Update

Employers with operations in Australia with full-time salaried employees covered by a modern award may be affected by the Fair Work Commission’s recent decision to make changes to annualised salary clauses.

“Bahrainisation,” which is used to describe requirements for employing Bahranian nationals, is now being applied to the healthcare sector.

The implementation of wage protections in Bahrain has been the subject of much discussion in recent years, so it was not surprising that Resolution No. 68 of 2019 on the Wage Protection System was passed in 2019.

Bahrain’s Resolution No. 84 of 2019 was issued by the Minister of Labor and Social Development prohibiting the employment of pregnant women in a number of hazardous environments. In particular, the resolution prohibits exposure to extreme heat, continuous physical exertion, harmful vibrations, exposure to radiation, exposure to bacterial infections, and exposure to certain hazardous materials.

The mobility allowance (or “cash for cars”) is a cash amount that an employee receives in exchange for handing in their company car. The generous allowance was introduced on January 1, 2018 as a “green” alternative to the company car.

Belgium has spent much of the last 12 months without a government following gridlock in coalition negotiations after the general election in May 2019. As such, there has not been any new legislation covering employment law. Here is a summary of topical actions that human resources (HR) professionals may want to take in 2020.

As of January 1, 2020, Bermuda employees are entitled to increased paid and unpaid maternity leave, and, for the first time, paid and unpaid paternity leave. Bermuda’s Parliament included the provisions in the Employment (Maternity Leave Extension and Paternity Leave) Amendment Act 2019, which amended the Employment Act 2000 (EA 2000).

Recent amendments to Bermuda’s National Pension Scheme (Occupational Pensions) Act 1998 and National Pension Scheme (General) Regulations 1999 have overhauled the way that private sector pension plans are registered, administered, and funded.

The European Union (EU) has recognized Bosnia and Herzegovina as a potential candidate country for joining the EU. To prepare for joining the EU, Bosnia and Herzegovina agreed to the so-called Reform Agenda of 2015 – 2018, which contained socio-economic reforms aimed at moving it closer to EU standards.

Cambodia’s adoption of the Law on Social Security Schemes dated November 2, 2019, will extend social security provisions to cover unemployment and roll out pension coverage to the private sector. The pension reform is expected to be launched in 2020.

The Parliament of Aruba approved a new corporate law impacting the legal position of statutory directors on the island country. A consequence of the new legislation is that courts will no longer be able to order the reinstatement of the employment agreement of a statutory director.

In the past, Colombia required physical documentation in order to formalize and execute an employment agreement. This has been an increasing irritation for employers that wished to finalize various employment-related documents with telecommuting and/or virtual employees. Therefore, in order to relieve the parties from onerous documentation requirements and facilitate the hiring process, the ministry of labor issued Circular 060, 2018 authorizing electronic and/or digital signatures for entering into employment agreements.

The Colombian government has issued a circular aimed at clarifying the circumstances in which employers may be authorized to discharge employees with medical conditions.

Law amendments made recently within the fourth Croatian tax reform have targeted the position of freelancers by introducing stricter requirements over the way they set up their business activities to continue to receive favourable tax treatment.

Although an extensive revision of the Czech labor code remains a work in progress, a number of interesting amendments to the labor code and the related legislation have been passed, which became effective on January 1, 2020.

The Maritime and Commercial High Court in Denmark ruled on the approach that employers can take when calculating compensation for loss of commission during holiday.

The Supreme Court of Denmark has decided a case in which an employer was unable to claim a refund of sickness benefits from the municipality because the employee had failed to complete forms required by the municipality.

The Labor Justice Act (Ley de Justicia Laboral) published in the Statutes at Large, has introduced unfair dismissal protection for pregnant women as well as for women who are union leaders.

The latest phase of legislative changes to Estonia’s Family Benefits Act are due to come into effect in July 2020.

The Court of Justice of the European Union (CJEU) recently declared that the EU-U.S. Privacy Shield is invalid because it does not provide an adequate level of protection for the transfer of personal data from the European Union (EU) to the United States.

Finland updated the Working Hours Act to give employers the possibility to agree to wider flexible working arrangements with employees. The amended act is effective as of January 1, 2020.

French employers are now obligated to investigate any allegation of harassment, even where the employee does not produce any evidence. This is the position taken by the French Cour de Cassation in November 27, 2019, case

When the General Data Protection Regulation (GDPR) was introduced, one of the central topics in the media was the possibility of large fines for data protection violations. Art. 83 of GDPR set benchmarks with a maximum fine of 20 million euros (or 4 percent of a company total worldwide turnover if greater), without, however, providing guidelines for calculation or determination of the amount of the fine.

On March 1, 2020, the Skilled Immigration Act came into force. The law is aimed at making it easier for qualified workers from countries that are not in the European Union (including skilled workers from occupations requiring an apprenticeship) to come to Germany.

The new year brought a number of changes to Greek employment laws, including the introduction of a new national general collective bargaining agreement and changes to legislation concerning overtime compensation at industrial enterprises and the classification of the fines for employment law infringements.

Following the trend of recent years, the beginning of the year brought changes to employment legislation in Hungary that went into effect on January 1, 2020.

After lengthy negotiations, the Code on Wages, 2019 has been passed by the upper and lower houses of the Indian Parliament and has also received the assent of the president of India. The Code on Wages is now awaiting its effective date notification to become law.

In a cautionary tale for employers, the High Court of Ireland held in Ryanair DAC v. Bellew that although Ryanair DAC’s post-employment noncompete clause was justified given the nature of the strategic role of chief operations officer (COO), the scope of this clause (which covered all airlines in any capacity) was too wide; therefore, the clause is void.

A recent National Labor Court ruling, Shalom Rozenberg v. Givun Imaging Ltd., highlighted the procedures to be followed when considering the termination of employment of individuals with disabilities.

The president of the Italian privacy authority has reiterated the need for employers to follow the safeguards set out in Italian national legislation when considering closed-circuit television (CCTV) surveillance. This follows a decision of the European Court of Human Rights (ECHR) published in late 2019 that approved the actions of a Spanish supermarket that installed CCTV even though the employees were unaware of its installation.

Jordan recently took a step forward in the fight against discrimination in the workplace. A study previously showed that men earn 41 percent more than women in the private sector and 28 percent more in the public sector. In response to the wage gap, the Parliament of Jordan, in collaboration with the International Labor Organization, has amended Labor Law No. (8) of 1996 to prohibit unequal pay.

Kenyan employers must provide lactation stations within their premises for breastfeeding mothers under the Health Cat, 2017 (Act), which took effect in July 2017. To further champion the cause for nursing mothers returning to work, The Breastfeeding Mothers Bill, 2019 was introduced in October 2019, in the National Assembly.

Lao Peoples’ Democratic Republic (Lao PDR) introduced the E-Data Protection Law (№ 25/NA) to protect the electronic data of individuals from improper disclosure or use.

To prevent unfair competition and so called “wage dumping” in certain sectors, recent amendments to the Latvian Labor Code allow employers in industries covered by an industry collective agreement, or general agreement, to make reduced overtime payments.

The Parliament of Lithuania has adopted amendments to the law on personal income tax that will exempt certain share option agreements from personal income tax.

Significant changes to Malaysian industrial relations laws aimed at “strengthening industrial harmony” are in the pipeline following the passing of the Industrial Relations (Amendment) Bill, which was passed by the Dewan Rakyat on October 9, 2019, and amends the Industrial Relations Act 1967 (IRA).

In order to start a disciplinary process against an employee, employers in Mexico must have the disciplinary process set out in a document known as an Internal Work Regulation (IWR). Mexico’s Federal Labor Law (FLL) names and regulates this document. An IWR must be filed before the competent labor board to be enforceable.

The new labor law of Montenegro went into effect on January 7, 2020 and has made a number of significant changes.

Using fixed-term employment contracts has become more expensive for employers as a result of new regulations introduced in the Netherlands on January 1, 2020. The Dutch government wants to promote the use of permanent employment contracts (referred to in the Netherlands and many European countries as contracts for an indefinite period of time) and discourage use of less secure fixed-term contracts.

Two Employment Court (Court) judgments issued in the final quarter of 2019 demonstrate the trend of increased penalties for employers found to be in breach of minimum standards.

In 2019, the Parliament of North Macedonia adopted a new internship law, which allows companies to hire interns outside of the educational process.

Occupational safety and health (OSH) is currently a hot labor topic in Peru. On December 30, 2019, the government issued Urgency Decree No. 044-2019 (UD) focused on reinforcing the inspection capacities of labor authorities and including severe penalties for noncompliance such as criminal liability for employers and temporary closure of the workplace.

On December 30, 2019, the Peruvian government issued Emergency Decree No. 044-2019 (UD), which is focused on reinforcing the inspection capacities of labor authorities. It introduces serious penalties for noncompliance, including criminal liability for employers and temporary closure of the workplace.

In April 2019, President Rodrigo Duterte signed into law Republic Act No. 11313 (known as the “Safe Spaces Act”) with the aim of ensuring the equality, security, and safety of every individual, in both private and public spaces, including online and in workplaces.

President Rodrigo Duterte signed into law in 2019 Republic Act No. 11210, or the “105-Day Expanded Maternity Leave Law,” which extends paid maternity leave from 60 days to 105 days.

Historically, employers have been required to log employees’ work experience and years of service in a distinct human resources (HR) document called a “labor book.” New legislation requires employers to now start logging this information in an electronic register. In anticipation of the change, employers may want to move their labor books into digital format.

Several changes regarding Saudisation have been made to the labor market, particularly in relation to the Nitaqat program, which categorizes companies by color depending on their fulfillment of Saudisation targets.

Employment law as it relates to women continued to be an area of focus for the government in 2019 with the issuance of Ministerial Resolution No. (39860), which sets out a number of rules.

Following the enactment of the Anti-Harassment Law in 2018, Resolution No. (20912) was recently passed, which sets out procedures and requirements for employers to safeguard the privacy, dignity, and personal freedom of employees, and protect them against behavioral abuse.

The latest amendments to the Law on Personal Income Tax in December 2019 introduced an obligation to apply and implement the so-called “independence test” for entrepreneurs.

After several delays and various proposals and working groups, the law regulating staff leasing in Serbia was finally adopted in December 2019, and went into effect in March 2020. In many countries, staff leasing is referred to as agency work.

A recent case decided by the High Court of South Africa dealt with the curious interplay of an employee’s rights as they arise from both a written contract of employment and labor legislation. Although the judgment may at first seem confusing, a careful analysis sheds light on how these parallel sources of rights and obligations operate in conjunction.

Effective 1 January 2020, Sweden increased the maximum fines that can be imposed on companies from 10 million Krona (SEK) to 500 million SEK. The measure aims to increase the personal and physical safety of workers.

The revised Gender Equality Act will go into effect in Switzerland on July 1, 2020. It requires employers with 100 or more employees to conduct an internal wage equality analysis, to have the results of the analysis reviewed by an external body, and confirm the results in writing.

Taiwan’s new Labour Incident Act (LIA) came into effect on 1 January 2020, representing a major overhaul of how labour disputes are handled. The LIA aims to strengthen protection for employees by simplifying access to the court system, but places additional burden on employers.

Taiwan’s new Labour Incident Act (LIA) came into effect on 1 January 2020, representing a major overhaul of how labour disputes are handled. The LIA aims to strengthen protection for employees by simplifying access to the court system, but places additional burden on employers.

The Constitutional Court of the Republic of Turkey has repealed a rule that allowed journalists to claim 5 percent interest per day (amounting to 1825 percent per annum) on unpaid overtime (Decision 2019/48 E., 2019/74 K., 19/9/2019).

Penalty clauses in fixed-term contracts are common in Turkey and apply if either party to such a contract ends the contract before the expiration of the fixed term. Turkey’s Supreme Court has held that penalty clauses continue to apply even if the contract should be interpreted as a permanent contract due to a lack of justification for a fixed term.

The Dubai International Financial Centre (DIFC) introduced the DIFC Employee Workplace Savings Plan (DEWS), which took effect on February 1, 2020. The DEWS amends the current DIFC Employment Law, Law No. 2 of 2019, by replacing the end-of-service gratuity (ESG) regime with a defined contribution plan.

The Abu Dhabi Global Market (ADGM) enacted the Employment Regulations 2019, which took effect on January 1, 2020.

An employer that refused to offer a discretionary pay enhancement to a male employee who had availed himself of the statutory right to take shared parental leave did not run afoul of sex discrimination rules or breach the Equality Act 2010 (EA), even though the employer had offered the enhancement to a female employee taking statutory maternity leave, the Supreme Court of the United Kingdom ruled in Chief Constable of Leicester v. Hextall.

The United Kingdom’s Good Work Plan amended Section 1 of the Employment Rights Act 1996 (ERA) to impose a new obligation on employers to provide all employees and workers with a written statement setting out key terms and definitions of their employment contracts, on their first day of work.

Parents in the United Kingdom who suffer the loss of a child or a stillbirth are now entitled to two weeks’ bereavement leave under the Parental Bereavement Leave Regulations 2020 (also known as “Jack’s Law”). The campaign for the law was spearheaded by Lucy Herd following the accidental drowning of her son Jack.

On October 10, 2019, Governor Gavin Newsom signed California Assembly Bill (AB) 51, which prohibits employers from requiring employees to arbitrate claims arising under the California Fair Employment and Housing Act (FEHA) and related employment statutes.

Effective as of March 21, 2020, New York State’s Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)requires that nearly all businesses, regardless of where they are based, take affirmative steps to protect computerized private information of New York residents.

The National Assembly of Vietnam adopted a new Labor Code (No. 45/2019/QH14) on 20 November 2019 (the New Labor Code), which becomes effective 1 January 2021.