Australia: New enterprise, existing employees: the High Court says Yes

The High Court has confirmed that an enterprise agreement for a new enterprise can be made with existing employees who have agreed to work, but are not at that time actually working, as employees in the new enterprise.

The High Court’s decision may provide employers with an increased ability to negotiate enterprise agreements for new enterprises with existing employees, rather than as greenfields agreements.

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Filed under Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: Australia

UK: Brexit negotiators agree sufficient progress made on rights of EU citizens in UK

The rights of EU citizens is one of the three issues on which sufficient progress was required before the Brexit negotiations with the EU could move onto Britain’s future relationship.  The Joint Report of the negotiators issued in early December confirms that the Government is willing to accept that the specified cut off date for protection for EU citizens already exercising their freedom of movement rights to reside in the UK will be the time of the UK’s withdrawal; previously it has been unwilling to say more than that it would not be earlier than 29 March 2017.  This may provide some reassurance for employers reliant on EU staff.  See our Brexit blog for further details.

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Australia: Employers get the good oil on strikes and coercion

In Esso Australia Pty Ltd v The Australian Workers Unions [2017] HCA 54, the High Court of Australia held that:

  • Where a person contravenes an order in relation to an enterprise agreement or matter arising from bargaining, that person remains precluded from taking protected industrial action after the expiry of the contravened order, until the conclusion of the relevant bargaining. This is so, even if the order concerns minor procedural matters and even if the breach is quickly rectified.
  • Where a person takes action with the intent to coerce another person in breach of section 343 or 348 of the Fair Work Act 2009 (Cth) (FW Act), the intent or belief of the person with respect to lawfulness of the action will not be relevant to determining whether the conduct amounts to coercion.

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Filed under Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: Australia

UK: employers should review sexual harassment policies and staff training

The continuing media focus on sexual harassment claims has highlighted an issue which poses a significant challenge for all employers, to ensure there is clarity over what behaviours are unacceptable and that employees both feel safe to report concerns and confident that complaints will be dealt with fairly and appropriately.

In early December the Equality and Human Rights Commission wrote to the chairs of FTSE 100 companies and other leading organisations to warn that they face enforcement action (which could include a formal investigation) where there is evidence of systemic failing in preventing, or dealing with, sexual harassment. Organisations have been asked to supply evidence by 19 January 2018 of the safeguards they have in place to prevent sexual harassment and to ensure that it can be safely reported without fear of retribution, and how they plan to prevent harassment in the future. Continue reading

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Filed under Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment)

UK: board diversity report and updated executive search code

The Parker Review Committee has published its final report into the ethnic diversity of UK boards. The final recommendations are substantively the same as those published in a 2016 consultation draft. The final report recommends that there should be at least one director of colour on each FTSE 100 board by 2021 and each FTSE 250 board by 2024. There are also recommendations on ensuring the pipeline, executive search principles, and that commentary on a company’s efforts to increase ethnic diversity within its organisation, including at board level, should be included in the description of the company’s diversity policy set out in the annual report. Companies that do not meet the board composition recommendations by the relevant date should disclose why this is the case. Continue reading

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Filed under Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment)

UK: Government, investor and media focus on gender pay gap reporting

Large private sector employers are required to publish their gender pay gap data by 4 April 2018.  However, in the last couple of months pressure has been put on employers to publish early, a call endorsed by the Prime Minister personally at the end of October.  At that point only around 2% had done so;  this has now increased to around 3.5%.  The Prime Minister also called for smaller employers (with fewer than 250 employees) to publish voluntarily, and encouraged employers to take steps to reduce the pay gap, by improving the pipeline to ensure progress on female representation at senior levels, including offering return to work schemes, and by advertising all jobs as open to flexible working arrangements from day one, unless there are ‘solid business reasons not to’.

Listed companies should note that the 2018 revised Investment Association principles of remuneration published in early November state that shareholders expect remuneration committees to provide the gender pay gap numbers in the context of the business and fully explain why the figures are appropriate.

For those employers looking to develop action plans to tackle their gender pay gaps, the Government Equalities Office has recently launched a toolkit which suggests committing to three priority actions from their action list.  Their potential action list covers the following areas: Continue reading

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Filed under Jurisdiction: UK, Remuneration (including bonus and incentive plans), Workplace culture, diversity and discrimination (including bullying and harassment)

Australia: Safety due diligence: one size cannot fit all

With a heightened awareness of officers’ WHS due diligence obligations, there is a risk the lines between governance at the board level and management at the executive level are blurred – which is potentially bad for safety.

Steve Bell and Nerida Jessup co-authored an article for the December edition of OHS Professional, published by the Safety Institute of Australia.

Click here to read the full article.

 

Steve Bell
Steve Bell
Partner, Melbourne
Email | Profile
+61 3 9288 1236
Nerida Jessup
Nerida Jessup
Senior Associate, Sydney
Email | Profile
+61 2 9322 4732

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Filed under Jurisdiction: Australia, Workplace Health and Safety

Australia: South Australia Labour Hire Licensing Bill Passes

The Labour Hire Licensing Bill 2017 (SA) (the SA Bill) was passed on 29 November 2017 by the Legislative Council of the South Australian Parliament and the licensing scheme is set to commence on 1 March 2018. Labour hire service providers will have six months from commencement to obtain a licence. The Bill closely follows the Labour Hire Licensing Act 2017 (Qld) which was passed in September 2017. Please see our earlier article relating to the scheme in Queensland for further detail.

A timeline for the publication of the Regulations supporting the SA Bill has not been made public. We expect that Regulations will be published before the scheme commences. Continue reading

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: Australia

China: Worker status – Contractors or employees?

In China, it is common for companies to engage independent contractors rather than employees when seeking to limit costs and liability. This approach has become particularly popular in certain service based industries such as hospitality, IT and consumer products sales. Whilst the independent contractor model is generally permitted under PRC law, companies should be aware of the risk that an individual may challenge the basis of their relationship with the company and, even where it was not the parties’ intention to enter into an employment relationship; a de facto employment relationship may in fact exist.

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

Indonesia: Minimum wage – compliance check

On 16 November 2017, the recently elected Governor of Jakarta stipulated the new provincial minimum wage of DKI Jakarta for 2018 in the amount of IDR 3,648,035.82 (or equivalent to approximately USD 270) through Governor Regulation No. 182 of 2017 (“GR 182”). Having completed consultation with employee and employer representatives, the anticipated new rate is an increase of 8.71% from the 2017 provincial minimum wage.

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Filed under Jurisdiction: Asia, Remuneration (including bonus and incentive plans)