Outlined below are the latest rights and duties for employees and employers.
EU employers will have a greater administrative burden following the European Court of Justice’s (ECJ) decision on 14 May 2019.
The ECJ presided over a case referred to it from the Spanish National Court of Justice. The case focused on a dispute between Deutsche Bank and a Spanish trade union regarding the requirement to record the working hours of employees. Deutsche Bank argued that it was sufficient to record only overtime hours, which the union firmly contested. The ECJ agreed with the union and ruled that recording overtime hours is not sufficient and employers have a legal duty to record the working hours of all EU-based employees.
As a result of the decision, EU member states will have to amend existing legislation to ensure that it accords with the view of the ECJ and compels employers to set up a timekeeping system that meets EU requirements. Regarding the system used to record working time, the finer details will be decided upon by each Member State – however it will need to meet the expectations of the ECJ , namely ‘an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’ .
If you employ EU workers you should therefore take action to introduce time recording systems for your employees.
On the 16 April 2019 EU ministers voted in favour of the draft Whistleblowing Directive. The directive will now proceed to formal approval after which Member States will have two years to implement into domestic legislation.
Under the proposed directive, all private companies with more than 50 employees, or with an annual turnover of more than EUR 10 million, will be required to establish internal reporting channels to ensure the confidentiality and protection of whistleblowers.
The Directive introduces a three tier reporting process.
The first stage is for employees to report issues to the employers via the established reporting channels, at which point depending on the issue the employer has a three to six month timeframe in which to respond.
In the absence of internal processes or where the internal process has failed (or for fear of retaliation) the whistleblower can report their issue to the competent authorities.
As a last resort the whistleblower can report their issue to the media or public where the previous two stages have failed to function.
What is apparent is that for employers with fewer than 50 employees that are not required by law to have internal reporting channels, the lack of internal process means there is a risk of employees reporting to the local authorities in the first instance. In order to avoid this we would strongly recommend that internal whistleblowing policies are available to EU employees so that issues can be reported internally first.
The Parental Leave (Amendment) Bill 2017 (the Bill) was passed on 8 May 2019. The Bill is likely to be enacted at the end of the summer and will increase the current parental leave entitlement from 18 weeks to 26 weeks, and at the same time increasing the eligible age of the child to 12 years from the current eight year limit. It should be noted however that the increase will be subject to a phased introduction – timetabled to rise to 22 weeks in September 2019 and rising again on September 2020 to 26 weeks.
The Bill follows the earlier approval for parental leave to be paid for the first two weeks (to be taken in the child’s first year). The remaining leave will be unpaid.
Parental leave is designed to provide employees with additional time off to assist with caring for a child (separate to maternity and paternity).
Effective from 4 May 2019, updates to the Polish Labour Code require that employers can only collect and process sensitive personal data in circumstances where the employee or candidate supplies the information at their own initiative, rather than following the request of the employer.
Sensitive personal data includes data on racial or ethnic origin, political views, religious or ideological beliefs, trade union membership and genetic data, biometric data to uniquely identify a person or data on health, sexuality or sexual orientation.
Current workplace processes may need to be reviewed and updated in light of this development.
The Swedish Labour Court recently had the opportunity to comment on the relationship between remote workers and their employers and how this can impact on performance issues. The case involved a home-based engineer who consistently failed to attend the office and communicate fully with his management, and whether this could be grounds for dismissal. The court stated that remote working required greater degrees of trust, but also required detailed instruction on the expectations of the employer with regards to communication and routines.
The case serves as a prompt for those who employ remote workers to ensure that there are prescribed requirements regarding how the employee integrates with the rest of the business, in the absence of which performance-based terminations are more difficult to justify.
Most employers will provide support to employees whose child has died, however currently there is no statutory requirement for an employer to provide paid time off. The UK government is introducing new legislation in April of next year to change this position.
Under the Parental Bereavement (Leave and Pay) Act 2018, an employee whose child dies under the age of 18, or whose baby is stillborn at 24 weeks or later, is entitled to a maximum two weeks of paid leave. The right to paid leave will also be available to adoptive parents, guardians, foster parents and those who have assumed primary care of a child in the absence of the child's parents. Employees will need 26 weeks continuous service in order to receive pay at a statutory rate for the duration of the leave (employees without the requisite service will be entitled to the leave, but without pay).
The leave can be taken in one go or in two separate periods of one week, but it must be taken within 56 weeks of the child’s death.
Australian businesses now have increased duties to protect whistleblowers following the passing of The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019.
The following key changes now apply as a result of the Act:
In addition to the above changes, some companies have an additional requirement to have a whistleblower policy, namely all public companies, large proprietary companies or corporate Trustees of registrable superannuation entities. The policy must be made available to officers and employees of the company.
Whether or not a company is considered a ‘large proprietary company’ is determined by section 45A(3) of the Corporations Act, which states a business will meet the definition if it satisfies at least two of the following criteria:
The policy must be in place by 1 January 2020 and failure to do so will be a criminal offence, with a maximum penalty of USD 126,000.
Even for organisations that are not required by law to have a whistleblowing policy it is recommended that a policy be put in place or existing policies are amended to reflect the requirements of the Act.
Effective from 1 April 2019 Singapore’s main labour legislation, the Employment Act, has been extensively updated.
Of greatest interest to international organisations is widening of coverage so that professionals, managers and executives are no longer excluded from its provisions:
Employers of senior employees and professionals should take an action to ensure that their employment terms meet the minimum standards required of the Act and also take a more considered approach to future employee terminations.
On 3 April 2019 Ontario made two significant changes to Employment Standards Act, 2000 (ESA)
ESA Posters: Employers are no longer required to display at the workplace the ESA information poster – however instead there is a requirement to provide employees with the most recent poster.
Working time limits: it is possible for an employee to work beyond the limits set out in the ESA in circumstances where the employee has agreed that they will work a specified number of hours in a work week in excess of the limit. As a result the employer is no longer required to apply to the Director of Employment Standards for approval.
The above serves as a reminder to businesses of the requirement for the ESA Poster, the supply of which to new employees should form part of your onboarding process.
If you would like to discuss how these changes could affect you or your business please contact Stuart Buglass.
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