Nyheter innenfor arbeidsrett, Februar 2017

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Employment Law Tracker

 

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

 

Australia

Latest Case Law: Australia: Court rules on adverse action provisions In this case, the Federal Court confirmed that the prohibition on discrimination (“FW Act”) applies to prospective employers as well as actual employers and that an Applicant need not establish a prima facie case in order to enliven the reverse onus of proof under the act. » Read More Australia: Court clarifies distinction between overtime and recall to duty payments In this case, the Federal Court provides a method for calculating wages payable to an employee previously found to be entitled to “overtime” rates and not “recall to duty” payments for work carried out from home while she was “on call”. » Read More

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Austria

Impending Changes of Legislation: Austria: Right to Part time Re-integration for Employees Expected July 2017 On July 1, 2017, a new right to part time re-integration for employees returning to work after a long-term sickness will be introduced. » Read More

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Belgium

Latest Case Law: Belgium: Converting a dismissal – no new obligation to motivate the dismissal The conversion of a dismissal with a period of notice into an immediate dismissal does not provide the employee with a new deadline to request a motivation of his/her dismissal from the employer. » Read More Belgium: Is an assassination attempt outside working hours always a reason for a dismissal for serious cause? Facts, which occurred in the private life of an employee, do not always justify a dismissal for serious cause. » Read More

Impending Changes of Legislation: Belgium: New reintegration procedure for employees on long-term sick leave abolishes the old legislation The new legislation regarding the reintegration of employees on long-term sick leave has abolished the old legislation. » Read More Belgium: The legal interest rate for 2017 fixed at 2% The legal interest rate, which, for example, is important to calculate the amount due in case of salary arrears, decreased from 2,25 (2016) to 2% (2017). » Read More Belgium: The Social Partners conclude the inter-professional agreement 2017-2018 In their inter-professional agreement 2017-2018, the social partners have set the wage norm for 2017-2018 at 1,1%. » Read More

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Canada

Latest Case Law: Canada: Attendance Management Programs Do Not Set the Legal Standard for “Excessive Absenteeism” Alberta Court of Queen’s Bench confirms that the definition of “excessive absenteeism” under an Attendance Management Program may guide, but will not bind, an adjudicator’s consideration of whether an employment contract has been frustrated. » Read More

Impending Changes of Legislation: Canada: Federal Bill to amend several labour and income tax laws now at the third reading stage Federal government Bill C-4 aims to repeal amendments to the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act, restoring card-check certification for federally regulated employers, and repealing certain tax reporting requirements affecting Canadian labour organizations and trusts. » Read More

Other Observations: Canada: Ontario Human Rights Commission releases policy statement on medical documentation to be provided upon disability-related accommodation requests The Ontario Human Rights Commission’s new policy statement regarding medical documentation provides clarity regarding the types of medical information that employers can request from employees in support of a request for accommodation. » Read More

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China

Impending Changes of Legislation: China: Fujian Province releases regulations on nursing leaves to protect the rights and interests of the elderly As of March 1, 2017, an employee in the Fujian province, who is the only child in his/her family, will be entitled to up to 10 days of nursing leave each year to care for his/her parent, who is over 60 years old and is in the hospital for treatment. » Read More

Other Observations: China: The Circular on Implementing the Treaty between China and Canada on Social Security came into effect on January 1, 2017 As of January 1, 2017, Canadians who are dispatched by Canadian companies to work in the territory of China, or who are self-employed, or staff working on vessels and aircraft, or government employees, could be exempt from the payment of the endowment insurance premiums in China. » Read More

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France

Latest Case Law: France: No extra protection during maternity leave extended by CBA Additional maternity leave instituted by a national collective bargaining agreement is deemed an exemption from remunerated work, that does not offer the employee an additional period of protection from termination. » Read More

Impending Changes of Legislation: France: The new Equality and Citizenship law is published in the “Journal officiel” The Law on Equality and Citizenship, published in the Journal Officiel on January 28, 2017, includes measures that are diverse and varied, from the extension of civic duty and community service to the creation of paid leave for engagement in an association. It also covers aspects such as mobility for apprenticeships and sets new guidelines on non-discrimination in the hiring process. » Read More

Other Observations: France: 2017 base salaries set for executives in metalworks industry For 2017, the base (minimum) salaries for metalworks engineers and executives have been increased by 0.8%. » Read More

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Germany

Latest Case Law: Germany: Compensation owed by public employer for not inviting a severely disabled applicant to a job interview For the application process at a public employer, not inviting a severely disabled person, who indicates his/her disability in the application, to a job interview, generally justifies the presumption for discrimination on grounds of disability. This can lead to compensation claims from the rejected applicant. An exception to the statutory obligation for public employers of inviting severely disabled applicants to a job interview may only be made if the applicant obviously lacks the professional qualifications required for the open position. » Read More

Impending Changes of Legislation: Germany: Federal Government proposed new Data Protection Act The Federal Government of Germany presented a draft of a new Data Protection Act based on the EU Regulation on the protection of private persons with regard to the processing of personal data and on the free movement of such data. » Read More

Other Observations: Germany: Opinion of the ECJ-Attorney General concerning contractual references to collective bargaining agreements in case of a transfer of undertaking According to the published opinion of the ECJ-Attorney General, a dynamic reference to a collective bargaining agreement in the employment contract, loses its dynamic effect with a transfer of undertaking. » Read More

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India

Latest Case Law: Summary of Recent Case Law in India Recent rulings: i) It is not sufficient that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude, for the gratuity to be denied to such an employee; ii) The High Court cannot interfere with the decision of the disciplinary authority under each and every circumstance, unless it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly disproportionate – to an extent that it shakes the conscience of the High Court – and compels it to interfere and alter the punishment. » Read More

Other Observations: Summary of Employment Law Observations in India (i) By virtue of amendment in the ESI Rules, an insured woman shall be entitled to 26 weeks of maternity leave. However, an insured woman having 2, or more than 2, surviving children shall be entitled to receive maternity benefits during a period of 12 weeks, of which not more than 6 weeks shall precede the expected date of confinement; (ii) Rule 30 (3) of the EPF Scheme provides that it shall be the responsibility of the principal employer to pay both the contribution payable by him, in respect of the employees directly employed by him, and also in respect of the employees employed by or through a contractor, as well as administrative charges. The Employees’ Provident Fund Office published certain conditions to be followed by principal employers if they are advised to discharge the provident fund to the contract employees. » Read More

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Italy

Latest Case Law: Italy: Company’s director is not a para-subordinate worker The relationship between the director and the company is not characterised by coordination, therefore it cannot be considered as a para-subordinate work relationship. » Read More

Impending Changes of Legislation: Italy: Amendments to law regulating offshore call centers The Minister of Economic Development has clarified the legal provisions aimed to prevent/regulate offshore call centers. » Read More

Other Observations: Italy: Metalworkers choose the company level agreements The new NCBA for metalworkers has re-designed the relations between the National and Company level agreements. » Read More

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Mexico

Impending Changes of Legislation: Mexico: The Local Congresses Approved the Constitutional Reform on Labor Justice Last February 3rd, the Local Congresses approved President Enrique Peña’s bill to substantially amend the Mexican Constitution on Labor Justice. According to this Constitutional Reform, Labor Justice will be administered by Labor Courts belonging to the Federal or Local Judicial Branch; a decentralized body is created, which will be responsible for substantiating a mandatory pre-trial instance and for the registration of unions and Collective Bargaining Agreements. It is likely that a Procedural Labor Code will be discussed and enacted afterwards, which will rule the administration of labor justice. » Read More

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Netherlands

Latest Case Law: The Netherlands: EUR 141,500 is the highest amount of “fair payment” for dismissal granted so far Recently, the court granted a dismissed Operations Manager a fair payment of EUR 141,500 gross. The amount – which was granted in addition to the statutory severance payment of EUR 27,513.90 gross – is, to date, the highest fair payment granted to an employee under the new dismissal legislation. » Read More

Impending Changes of Legislation: The Netherlands: Amendments to Working Conditions Act take effect 1 July 2017 As of 1 July 2017, several amendments to the Working Conditions Act will be implemented. The amendments mostly concern the role of the company doctor and the occupational health and safety service. » Read More

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New Zealand

Latest Case Law: Penalty imposed on New Zealand employee for breach of good faith An “injured” employee who took time off from work and was caught by a private investigator to be in a fit and healthy condition, received a penalty in the Employment Relations Authority, which was recently enforced by the Employment Court. » Read More

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Norway

Latest Case Law: Norway: Failure to execute work task due to conscientious objection was valid reason for dismissal An employee was discharged from her position as doctor when she refused to execute a task that conflicted with her conscience. The woman challenged the dismissal, but the district court found that the dismissal was valid. » Read More

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Poland

Latest Case Law: Poland: Shorter notice periods allowed only if employee terminates the employment contract The Supreme Court confirmed that it is possible for an employee and employer to include a shorter notice period, when the contract of employment is terminated by the employee. As a result, article 36 § 1 of the Labour Code is treated as a semi-imperative rule. » Read More Poland: Claim for discrimination is allowed even if employee failed to appeal the termination before the deadline The Supreme Court ruled that if an employee did not appeal against the termination of contract of employment (or an appeal was filed after the deadline), an employee is still allowed to seek a claim for compensation based on discriminatory reasons of termination or a discriminatory choice of dismissal. This resolves a discrepancy between the Supreme Court’s rulings, pursuant to the Supreme Court resolution of 28 September 2016 (III PZP 3/16), adopted by 7 judges. » Read More

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Romania

Latest Case Law: Romania: The isolation of a football player during practice, because he has judicial claims related to his employment, is discrimination and harassment In a recent ruling, the practice of a football team that systematically excluded a football player from the usual practice/training regime, due to the existence of judicial claims regarding the player’s employment, was qualified as direct discrimination and harassment. » Read More

Impending Changes of Legislation: Romania: New tax regime for seasonal workers that are kept active for the entire duration of the year As of February 1, 2017, no income tax will be paid for seasonal workers that are kept active in the workforce market for the entire year. » Read More

Other Observations: Romania: New occupations to be introduced in the National Classification of Occupations According to a project made public by the Labour Ministry, new occupations are to be introduced in the National Classification of Occupations in order to ensure that employers can assign the correct code for their employees. » Read More

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Russia

Latest Case Law: Russia: A collective agreement establishes only the minimum amount of compensation to employees An employee may demand a larger sum than that specified in the collective agreement. If there is a reason to pay compensation to employees, the amount of pay from the agreement and the collective agreement is money that an employer must pay on an uncontested basis. The final sum must be negotiated by the employee and the employer. If they fail to agree, the amount of compensation shall be determined by court. » Read More Russia: Employees have to revoke letters of resignation through an authorized person Employees have to revoke letters of resignation through an authorized person. When an employee withdraws the resignation, but it is reviewed by an unauthorized person and the employee is aware of this, hisher dismissal shall be deemed valid. » Read More The Supreme Court of Russia has approved the procedure for filing court documents electronically The Supreme Court of Russia has approved the procedure for filing court documents electronically. To confirm an application process, an enhanced qualified electronic signature or an account on a website of public services is required. The court may accept the electronic document itself (originally created in electronic form) or a scan of a paper document. » Read More

Impending Changes of Legislation: Russia: New Bill to allow for salaries in foreign currency New Bill allows for a salary to be paid in foreign currency, when labor duties (on a regular basis) are performed outside the territory of the Russian Federation. » Read More Russia: State Duma Bill would increase the amount of compensation for the delay in salaries New Bill would increase the amount of compensation for the delay in salaries. Nowadays, an employer is obliged to pay interest at the rate of not less than 1/150 the key rate of the Central Bank of the Russian Federation. Duma members propose to increase the surcharge to 1/100. » Read More

Other Observations: Labor inspection plan in Russia for 2017 is published Labor inspection plan in Russia for 2017 is published. The plan details: 1) time of checking, 2) its duration, and 3) the subject of checking – what will be checked. » Read More

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Saudi Arabia

Impending Changes of Legislation: Saudi Arabia: New regulation on termination of KSA nationals’ employment by reason of redundancy On 30 January 2017, the Ministry of Labour and Social Affairs announced a new resolution limiting the ability of employers in the Kingdom to terminate the employment of KSA national employees by reason of redundancy. » Read More Saudi Arabia: National Budget introduces fees for dependents As reported last month, the National Budget was announced in January 2017. Pursuant to the National Budget, KSA introduced increased visa fees for foreign nationals (where bilateral agreements are not in place) and also announced new fees payable by expatriate workers who sponsor their dependants to reside in the Kingdom. » Read More

Other Observations:Saudi Arabia: Citizenship account programme Saudi citizens with dependents will be able to apply for assistance by way of additional allowances, payable through the programme to supplement their incomes. » Read More Saudi Arabia: Reserved roles for KSA nationals Job descriptions published for each of the reserved roles for Saudi nationals and stated that it will examine the actual role performed by any non -KSA national, to see if they are effectively doing a reserved role under a different title. » Read More

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Spain

Latest Case Law: Spain: Employees may receive special rights of trade union representatives even if legal requirements are not met Court rules on trade union representatives’ special rights when legal requirements are not meet. Special consideration to the employee’s declaration of status of trade union representative applies, if the company does not oppose to it. » Read More

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Sweden

Latest Case Law: Sweden: A dismissal of an employee was declared invalid due to a close connection with the employee’s upcoming parental leave The case concerned whether the termination of an employee’s employment contract was due to redundancy or whether it was related to the employee’s application for parental leave. The Court found that the dismissal of the employee had a close connection in time with the employee’s filing for parental leave and that the dismissal was in breach of the non-discrimination principle of the Swedish Parental Leave Act. » Read More Sweden: Disobedience and general unwillingness to perform work constituted grounds for dismissal The case concerned an employee who was dismissed due to his inability to perform in accordance with his undertakings following from the employment contract. The Court concluded that the dismissal was based on legal grounds. » Read More

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United Arab Emirates

Other Observations: UAE: New Emiratisation recruitment procedures A new program called Tawteen was introduced. Tawteen is a recruitment portal, which allows UAE nationals to register on the portal as a job seeker and be eligible to apply for vacancies in the private sector as advertised. » Read More

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United Kingdom

Latest Case Law: UK: Disability discrimination – whether a condition is likely to result in a substantial adverse effect on normal day-to-day activities The EAT considered the employee’s argument that type 2 diabetes should be treated as a progressive condition and therefore a disability under the Equality Act 2010. In assessing whether the condition was likely to result in a substantial adverse effect on normal day-to-day activities the EAT said, even if there is a small possibility of the employee’s condition deteriorating in the future, that may result in the employee having a disability. » Read More UK: Gross negligence by a failure to act may justify dismissal without notice In a claim by a Regional Operations Manager for wrongful dismissal, the Court confirmed that gross negligence can amount to gross misconduct, justifying dismissal without notice. However, there will only be limited circumstances in which an employee’s failure to act justifies summary dismissal if they did not intend to act contrary to, or to undermine, the employer’s policies. » Read More

Impending Changes of Legislation: UK: Statutory guidance on ‘Managing gender pay reporting in the private & voluntary sectors’ published The new gender pay gap regulations for companies with at least 250 employees have received parliamentary approval and are awaiting sign off by ministers. The draft statutory guidance has now been published, which has practical advice on carrying out gender pay gap reports, clarification of some issues, and “essential considerations” on how employers can reduce the gender pay gap. » Read More

Other Observations: UK: Ministry of Justice’s employment tribunal fees post-implementation review published The Ministry of Justice’s review of the introduction of fees in the employment tribunals and the EAT has been published. It concludes that the fees regime is working well and is meeting the original objectives for the introduction of fees and that there is “nothing to suggest” that individuals have been prevented from bringing employment tribunal claims. » Read More

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United States

Other Observations: President Trump Nominates Neil Gorsuch to U.S. Supreme Court President Donald Trump has nominated the Honorable Neil McGill Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. Judge Gorsuch has been described as having a deep commitment to the original understanding of the Constitution and the distinction between legislative and judicial powers. Gorsuch’s nomination must be approved by the U.S. Senate after the Senate Judiciary Committee holds a hearing. » Read More

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