L&E Global – Nyheter innenfor arbeidsrett for januar 2017

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Employment Law Tracker

 

L&E Global is pleased to present you with the most recent employment law updates for January 2017.

 

Australia

Latest Case Law: Court rules on cashing out of annual leave at Anglo Coal The Federal Court held that an employer must pay an employee who cashes out their personal leave The same amount they would have been paid if The employee had actually taken The leave, rather than a set daily rate of hours. The High Court refused leave to appeal. » Read More

Court rules on lawfulness of direction to undertake secondment The Federal Circuit Court held that an employer did not take unlawful adverse action against an employee, and did not unlawfully coerce an employee, by directing her to undertake a secondment. » Read More

Impending Changes of Legislation: Changes to tax arrangements for backpackers in Australia From 1 January 2017, all backpackers will be required to pay 15 cents tax for every dollar they earn and new arrangements for superannuation take effect. » Read More

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Austria

Latest Case Law: Mutual Termination: unlawful pressure due to the threat of unchecked grounds for immediate dismissal According to a recent decision by the Austrian High Court, employers must be careful when they want to avoid an immediate dismissal by concluding a mutual termination agreement. The threat of an immediate dismissal can put the employee under unlawful pressure, because the employer might not yet know if the grounds for dismissal are valid. » Read More

Impending Changes of Legislation: Changes to the Austrian law regarding wage and social dumping in force since January 1st 2017 Essentially, the authorities will gain the power of more control mechanisms and further measures to fight against wage and social dumping. » Read More

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Belgium

Latest Case Law: Discrimination on the ground of social origin An applicant was not taken into consideration by a recruiting company as he was a member of a family which – in the opinion of the recruiting company – was “dishonest”. A Labour Court condemned the recruiting company to pay a 6 months’ salary indemnity on the ground of discrimination. » Read More

Analysis of ECJ ruling on Temporary Inability to Work, Disability and Discrimination Workers who are temporarily unable to work may be considered to have a disability, if the judge finds their incapacity is likely to be long-term, in view of the scientific and medical evidence presented. » Read More

Impending Changes of Legislation: New Secondment Rules EU Directive regarding secondment was transposed into the Belgian law. » Read More

Higher criminal and administrative fines for Social Crimes apply as of 1 January 2017 Increase from 6x to 8x in criminal and administrative fines for Social Crimes apply as of 1 January 2017 » Read More

Reform of the rules regarding ‘time-credit’ Time-credit without justification is deemed to disappear on 1 April 2017. Other rules are modified. » Read More

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Canada

Latest Case Law: Alberta Court of Appeal overturns 2015 decision from trial court concerning bonus entitlements and the common law duty of reasonable exercise of discretionary power Appeals Court rules that there is no such duty of reasonable exercise of discretionary contractual power and that the employee was not entitled to the bonus because he did not satisfy the requirement of “active employment”. » Read More

Resignation must be “clear and unequivocal” to be effective Court rules that an employee was permitted to resile from a resignation until the employer had either accepted the resignation, or relied on the resignation to its detriment. » Read More

Impending Changes of Legislation: Changes to the Accessibility for Ontarians with Disabilities Act effective January 1, 2017 Private sector employers in Ontario with between 1 and 49 employees must be compliant with several new provisions under the Employment Standard and Information Communications Standard under the Accessibility for Ontarians with Disabilities Act, 2005. » Read More

Other Observations: Government of Ontario to offer additional help to sick workers Government aims to have a dedicated occupational disease response team in place by the end of the year to assist workers with respect to occupational disease. » Read More

Alberta Securities Commission adopts gender equality rules New rule requires Alberta-based non-venture issuers, including Toronto Stock Exchange listed companies, to disclose the number of women on their boards and in executive management. » Read More

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China

Latest Case Law: The Probation Period Could be Suspended due to the Employee’s Medical Treatment Period and the Suspension-of-Work-With-Pay Period The probation period is an observation period for both employer and employee during the actual performance of employment and could be suspended in certain situations, including facing the suspension-of-work-with-pay period and the medical treatment period of the employee. » Read More

Other Observations: The Nationwide Networking of Health Insurance shall be Accomplished at the end of 2016 The Human Resources and Social Security Department announced that the nationwide networking of health insurance should have been accomplished at the end of 2016. » Read More

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France

Latest Case Law: Nullification of the daily lump sum arrangement clause in the real estate branch A new professional branch (real estate) was penalized over a clause that allowed for the implementation of the daily lump sum arrangement: it was judged null and void as it did not provide for a sufficient monitoring or control of the employee’s workload. » Read More

Impending Changes of Legislation: Medical monitoring of employees modified by new labour law The new labour law has modified the medical monitoring of employees by removing the systematic medical consultation upon hiring. The law sets out new means of evaluating the employee’s physical aptitude. The governmental decree that allows for the practical applications of these provisions has been published. » Read More

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Germany

Latest Case Law: Works council has co-determination right concerning posts on the employer’s Facebook page The German Federal Employment Law Court ruled that the works council has a co-determination right if posts by third parties – such as customers – are directly published on the employer’s Facebook page and such posts might be related to the employees’ performance or behavior. » Read More

Impending Changes of Legislation: Federal Participation Law came into effect The new Federal Participation Law (Bundesteilhabegesetz – BTHG) shall improve the possibilities and self-determination of disabled persons. In particular, the new law regulates that every termination of a severely disabled person requires a prior participation of the representative body for severely disabled persons. If this body exists in the employer’s business, but no appropriate participation takes place, the termination is deemed null and void. » Read More

Other Observations: Request concerning the employer’s obligation to grant holiday without application by the employee submitted to European Court of Justice The German Federal Employment Court submitted a request to the European Court of Justice as to whether or not the employer is obligated to grant holidays even if the employee did not apply for leave during the calendar year. » Read More

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India

Latest Case Law: Employees’ Compensation Act, 1923 A recent Supreme Court ruling held that to determine the percentage of permanent disability of the employee under the Employee Compensation Act, it has to be undertaken by a qualified medical practitioner. » Read More

Impending Changes of Legislation: Draft Child Labour (prohibition and regulation) Amendment Rules, 2016 The Ministry of Labour and Employment released the draft of Child Labour (Prohibition and Regulation) Amendment Rules, 2016 on December 29, 2016. One of the main proposed changes is to rename the Rules to Child and Adolescent Labour (Prohibition and Regulation) Rules, 1988. » Read More

Other Observations: Revised Wage Limit Under The Employees’ State Insurance Act, 1948 The amended Rules notified on December 22, 2016, has revised the wage limit for coverage of an employee under the Employees’ State Insurance Act, 1948 (“Act”) from INR 15,000/- to INR 21,000/-. The amendment is effective from January 1, 2017. » Read More

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Italy

Latest Case Law: Manager dismissed for taking holidays without agreeing beforehand with employer It is lawful to dismiss a Manager who takes holidays without agreeing to the timing in advance with his employer. » Read More

Impending Changes of Legislation: Elimination of Vouchers Debate is underway about whether or not the use of vouchers should be eliminated from the labour market. » Read More

Other Observations: The Unions’ referendum proposal on article 18 of the Workers Statute has been rejected The Constitutional Court has declared inadmissible a referendum on the abolition of the amended law on article 18 of the Workers Statute, regulating the remedies in unfair dismissals. » Read More

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Luxembourg

Impending Changes of Legislation: New legal provisions on flexible working time regimes A draft law number 7016 on flexible working time arrangements was introduced on July 27th, 2016. This draft bill has been voted on and published as the law dated 23 December 2016. The new legal provisions tend to limit the employer’s flexibility concerning the organisation of flexible working time systems. » Read More

Luxembourg’s salary indexation The employees’ salary is increased by 2.5% as from January 1st, 2017. The new index is 794.54. » Read More

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Mexico

Impending Changes of Legislation: The National Institute of Statistics and Geography (INEGI) determined the value of the Unit of Measure and Update (UMA) for the period 2017 – 2018 INEGI fixed the new value of the UMA at $75.49 pesos daily, $2,249.90 pesos monthly, and $27,538.80 pesos annually. The corresponding adjustments to federal, state laws and their regulations for the effect of eliminating references to the minimum wage, must be performed no later than January 28. » Read More

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Netherlands

Latest Case Law: Void dismissal during probationary period results in a fair compensation and a compensation for irregular termination From the employment agreement, it follows that no probationary period has been agreed upon, as a result of which, the dismissal during the probationary period is not legally valid. The court ruled that the employee is entitled to a fair compensation of EUR 1,500 and a compensation for irregular termination for the notice period that the employer should have taken into account in case of a regular termination. » Read More

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New Zealand

Latest Case Law: International companies with New Zealand based employees may be able to enforce foreign law in employment agreements International companies that have New Zealand based employees may now be able to enforce their choice of foreign law in employment agreements should an issue arise. The New Zealand Court of Appeal has found that the express specification of foreign law in an employment agreement should be the relevant law to apply before assessing whether any conflict of law exceptions apply. » Read More

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Norway

Latest Case Law: Court ruling balances freedom of establishment against the fundamental rights of association The Supreme Court found that a boycott initiated by the Norwegian Transport Workers’ Union against Holship Norway AS was contrary to freedom of establishment under the EEA Agreement, and thereby illegal, because it has an unlawful purpose. » Read More

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Poland

Impending Changes of Legislation: Amendment of the Labour Code Amendments include increased limits of employees for working and wage regulations and longer period to file claims against employer. » Read More

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Portugal

Impending Changes of Legislation: Relevant legislative amendments for the year 2017 For 2017 the minimum monthly wage was increased to € 557,00. The meal allowance for public sector workers is fixed at the daily amount of € 4,52 from January 1, which will also impact the income tax of the private sector. The age for retirement in 2017 is set at 66 years and 3 months (one additional month when compared with 2016). » Read More

Other Observations: Portugal Holiday and Christmas Allowances Half of the amount of the holiday and Christmas bonuses that have to be paid by employers will continue, as a rule, to be paid in twelfths, throughout the year. » Read More

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Romania

Latest Case Law: Local Court acknowledges Employer’s right to establish special working hours schedule for off-shore employees In recent cases, the local court ruled that the Employer can establish a special working hours schedule for his off-shore Employees. National law is more restrictive than European regulations on working hours, however the Court found that in the case of off-shore Employees national law does not cover the specific situation, meaning that the Employer can apply European regulations on working hours. » Read More

Impending Changes of Legislation: New minimum monthly gross base salary guaranteed for payment starting February 1st The new minimum monthly gross base salary guaranteed for payment is 1450 lei (approx. 322 Euro or 344 USD), which will be enforced starting February 1st 2017. » Read More

Other Observations: 2017, the first year with 2 new legal holidays As a result of two successive changes in the Labour Code, starting in 2017, Romanian employees will benefit from 2 new legal holidays – 24th of January and 1st of June. » Read More

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Russia

Latest Case Law: A suspension from work under a court decision should be exercised immediately, even before the decision comes into force The purposes are: 1) the employee can obstruct investigation; 2) the employee can influence a witness; 3) the employee can destroy evidence. » Read More

The dependent position of an employee is not the reason to miss the deadline period for action The Moscow City Court stated that the purpose of a deadline period for action is to quickly restore the violated rights, and the dependent position of the employee is not a sufficient reason to justify his/her omission. » Read More

A part-time employee cannot be dismissed for a fake diploma while on a maternity leave To dismiss such worker, an employer needs to wait for expiration of the leave (in Russia it could be up to three years). » Read More

Impending Changes of Legislation: When a company is in reorganization procedure an unplanned special assessment of working conditions may be waived In case of reorganization: the employer inputs the production process which did not exist in the organization before. The assessment is not required if the employer: 1) has not introduced new jobs; 2) has not changed the working conditions of employees. » Read More

Other Observations: Prosecutor general’s office ordered the ministry of labor to rewrite regulations on which labor inspectors make checks According to the result of a joint meeting, the Ministry of Labor will prepare a schedule of changing these regulations. » Read More

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Saudi Arabia

Impending Changes of Legislation: Summary of Recent Legislative Amendments in Saudi Arabia Introduction of a monthly fee for expatriate workers and their dependents and Weighted Nitiqat System. » Read More

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South Africa

Latest Case Law: Constitutional Court holds that arbitration awards do not prescribe In a watershed judgment, the Constitutional Court has authoritatively held that the Prescription Act, which provides that most civil debts are extinguished after 3 years, does not apply to arbitration awards handed down in the employment law context. » Read More

Impending Changes of Legislation: Paternity and adoption leave, national minimum wage still being considered The Member’s Bill recently submitted to Parliament proposing enhanced paternity and adoption leave for employees remains under consideration, as does the proposal made towards the end of 2016 regarding a national minimum wage of R20/hour or R3500 per month. » Read More

Other Observations: South African chicken industry on verge of collapse The South African chicken sector is on the verge of collapse, as large quantities of cheap imported chicken flood the local market, forcing out local producers. » Read More

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Spain

Latest Case Law: New criteria to determine the breach of the employment relationship in the event of succession of temporary contracts A new ruling of the Spanish Supreme Court has set how to determine if an interruption of employment breaks the “essential unity” of the employment relationship in the event of a succession of temporary contracts. » Read More

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Sweden

Latest Case Law: Damages and legal fees for employee wrongfully summarily dismissed, although grounds for dismissal with notice was at hand The Labour Court awarded the employee SEK 50,000 in general damages, an amount corresponding to two months’ salary in economic damages and obligated the employee to pay half of the employer’s legal costs due to the overall outcome of the case. » Read More

Swedish law firm was obligated to pay retroactive vacation pay and damages to former employee The Labour Court awarded an employee of a law firm retroactive vacation pay and damages for the law firm’s breach of the Swedish Annual Leave, concluding that the law firm had been unsuccessful in proving that the parties had agreed that the vacation pay should be in included in the salary. » Read More

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United Arab Emirates

Other Observations: Summary of Employment Law Observations in the UAE Labour Injuries Report and Immigration changes in recruitment of Domestic Workers » Read More

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United Kingdom

Latest Case Law: Court rules on worker status in the gig economy An employment tribunal decided that a cycle courier was a worker under the Employment Rights Act 1996, and not a self-employed contractor. The courier therefore succeeded in her claim for two days’ paid holiday. » Read More

Dismissal decision fair despite reference to history of expired warnings and future expectations The EAT concluded that an employee was fairly dismissed when, having decided that his conduct merited a final written warning, the employer then dismissed the employee after considering his history of expired warnings because it believed that there would be future misconduct issues. » Read More

Impending Changes of Legislation: Gender pay gap reporting regulations The final draft version of the gender pay gap regulations has been published. Supporting guidance is expected later this month. » Read More

Other Observations: Rights for organ donors The Organ Donors (Leave) Bill 2016-17 is expected to have its second reading in Parliament in January 2017. » Read More

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United States

Other Observations: Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect If new Secretary of Labor is confirmed, employers may see significant policy shifts with respect to federal contracts, immigration, labor, workplace safety, and disability and leave law. » Read More

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