China: Compliance Check – Is Your Company Compliant with its Social Insurance Obligations?

Despite clear rules requiring both employers and employees to contribute to state social insurance schemes, many companies still remain in breach. In a crackdown intended to increase compliance, the tax authority will now be overseeing social insurance contributions.

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Filed under Jurisdiction: Asia

Thailand: Respecting Workers’ Rights

Human rights continue to keep the pressure on Thailand’s fishing industry, as forced labour and exploitation claims get increasing exposure.

Human rights groups continue to report of coercive labour practices in Thailand, in particular, in the fishing industry. In 2015, the European Union (“EU”) raised a yellow flag on Thailand’s illegal, unreported and unregulated fishing problems.

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Filed under Jurisdiction: Asia, Working hours (including holiday, sick leave, overtime, rest breaks), Workplace Health and Safety

Malaysia: Reinstatement Must be Sought by Employees in Unfair Dismissal Claims

A recent decision of the Industrial Court of Malaysia has confirmed the position that in a claim for unfair dismissal, the primary remedy is reinstatement. If an employee does not seek reinstatement, the court has no further jurisdiction over the matter.

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Filed under Jurisdiction: Asia, Termination of employment

Australia: Modern slavery legislation introduced into NSW

New South Wales has become the first Australian jurisdiction to introduce specific modern slavery legislation. The NSW Modern Slavery Act (NSW Act) is distinct from the proposed federal Act, which is expected to be tabled for debate in the federal Parliament in the coming weeks and is also likely to pass into law with bipartisan support. Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: Australia

Australia: Labour Hire Licensing Scheme enacted in Victoria

The Labour Hire Licensing Bill 2017 (Vic) (Bill) was passed on 20 June 2018. A commencement date has not yet been proclaimed. We expect it will be soon, but if no date is proclaimed the legislation will commence no later than 1 November 2019. Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: Australia

UK: Supreme Court upholds ‘worker status’ in Pimlico Plumber case

The Supreme Court has today dismissed Pimlico Plumbers (PP)’s appeal against a tribunal decision that plumber Gary Smith was a ‘worker’ (ie an individual who has undertaken to perform work personally for someone who is not his client or customer) with workers’ rights. The law is largely unchanged by the ruling, and its fact-specific nature means that it only provides limited guidance for similar cases.

In Pimlico Plumbers Ltd v Smith, the Supreme Court found that Mr Smith’s ability to choose to use a substitute did not prevent there being a sufficient obligation of personal service, given that he could only use a substitute from the ranks of other PP operatives bound by similar obligations. The Court framed the test slightly differently from earlier courts, suggesting that it would be helpful to assess whether the “dominant feature of the contract” remained an obligation of personal performance. Factors justifying the tribunal’s conclusion that it did included that (i) the requirement for substitutes to be PP operatives indicated that the company had a clear interest in who performed the work, as opposed to caring simply that the work got done, and (ii) the written contract itself didn’t mention the right to substitute, and set out requirements of Mr Smith expressly (as to his skills, appearance etc) rather than referring to requirements extending to him or any substitute. Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: UK

UK: HMRC and HM Treasury Publish Consultation to Extend Recent IR35 Public Sector Reforms to the Private Sector

On 18 May 2018, HMRC published a consultation document entitled “Off-payroll working in the private sector” with the aim of tackling what it perceives as high levels of non-compliance in the private sector with the existing off-payroll working regime (HMRC predicts the costs of such non-compliance will reach £1.2 billion in 2022/23 if this issue is not dealt with).

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: UK, Remuneration (including bonus and incentive plans)

Australia: The current position on industrial manslaughter by state and territory

We are witnessing a clear escalation in regulatory activity across Australia, most recently and very topical is the new Industrial Manslaughter (IM) offence.

Where a business is found to have negligently caused the death of a worker, the possible consequences for leadership, management and businesses are potentially significant. Senior officers (which includes everyone involved in management) could face up to 20 years jail time and businesses may be fined up to $10 million (or up to $16 million in Victoria). Continue reading

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Filed under Jurisdiction: Australia, Workplace Health and Safety

Australia: The latest in labour hire licensing laws

We have compiled a quick update regarding the progress of labour hire licensing laws:

Victoria

The Labour Hire Licensing Bill 2017 (Vic) (Bill) was debated in Victoria’s upper house on Friday (see Hansard here). Some clauses of the Bill were agreed (including the definition of ‘labour hire services’). Minister Pulford (ALP) said certain arrangements will be: Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements)

Is there a role for ADR in employment disputes?

The Global Pound Conference (GPC) Series is a unique and ambitious initiative to inform how civil and commercial disputes are resolved in the 21st century, collating views from over 4000 people at 28 conferences spanning 24 countries worldwide. Herbert Smith Freehills teamed up with PwC, IMI (International Mediation Institute) to identify key insights emerging from the extensive voting data, summarised in the ground-breaking Global Pound Conference report. The report identifies a strong preference amongst potential litigants for a flexible dispute resolution approach and a focus on collaboration over representation, with in-house counsel being the most likely agents of change. These themes certainly chime with a recent but growing interest in ADR in the employment sphere: the desire for efficiency in time and cost is acute, given the low value of many employment claims, and the potential for confidential resolution and in some cases a desire to preserve a valued individual relationship makes ADR an obvious option.

In the article here, the Herbert Smith Freehills employment team consider the relevance of the GPC data in the context of employment disputes in the key jurisdictions of Australia, France, Germany, Spain and the UK. We discuss the availability – and pros and cons – of various ADR methods for employment issues in those jurisdictions. One of our London partners, Peter Frost, and Paul Goulding QC of Blackstone Chambers co-chaired various reports on this issue by the Employment Lawyers Association’s Arbitration and ADR Group, and the article also reflects on those findings. Continue reading

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Filed under Employment-related claims- procedure and form, Jurisdiction: Australia, Jurisdiction: France, Jurisdiction: Germany, Jurisdiction: Spain, Jurisdiction: UK