Asia Employment, Pensions and Incentives Update June 2020

As workplaces are slowly beginning to re-open, new challenges arise for employment law and HR teams. Our Asia Employment, Pensions and Incentives update this month looks at:

  • the various measures introduced by the Department of Labour and Employment measures introduced in the Philippines, to preserve employment during the Covid-19 pandemic
  • the conflicting views around whether the disruption caused by Covid-19 is sufficient excuse for missing the filing deadline for an unfair dismissal claim in Malaysia
  • guidance on retrenchment benefits payable to employees who are retrenched as a result of Covid-19, in Singapore
  • reducing post-pandemic economic burdens in the PRC, in our first dual-language article
  • our Compliance Check this month, which looks at the health and safety obligations in Indonesia, and
  • our Comparative Article that considers the employment obligations arising from a business transfer, comparing the positions in Singapore, Malaysia, the Philippines, Thailand and Indonesia.

If you missed the webinar hosted by Fatim Jumabhoy and Drew Pearson on safe return to work in Australia, and what employers need to do to prepare for reopening, you can access the recording here. As part of Pride month, our next webinar on the 30th June will discuss LGBTQ+ protections in the workplace. For more details, please contact Nawarat Tippawang.

As always, do reach out if we can assist with your employment law issues across the region.

 

 

Fatim Jumabhoy
Fatim Jumabhoy
Partner, Singapore
+65 6868 9822
Narendra Adiyasa
Narendra Adiyasa
Partner, Jakarta
+62 21 3973 8000
Tess Lumsdaine
Tess Lumsdaine
Senior Associate, Hong Kong
+852 2101 4122
Rebecca Lim
Rebecca Lim
Associate, Singapore
+65 6868 8063
Gillian Miao
Gillian Miao
Counsel, Mainland China
+86 21 2322 2325

UK COVID-19: test and trace launched

The Government has today launched its test and trace system in England (and similar systems are in place in other regions of the UK).  Guidance for employers has been published here.  Key points for employers are:

  • Individuals who have been notified that they have had contact with an infected person and instructed to stay at home for 14 days under the new NHS test and trace system will also be deemed incapable of work and eligible for statutory sick pay.
  • Unless the notified individuals develop symptoms, individuals in their household will not have to self-isolate.
  • The guidance suggests that employers should allow self-isolating staff to take paid holiday instead of sick leave if they prefer, in order to receive full pay.
  • When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts should not self-isolate, but they:
    • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
    • must take extra care in practising social distancing and good hygiene and in watching out for symptoms.
  • If the person who has symptoms has a positive test result for COVID-19, the NHS test and trace service will ask them to share information about their close recent contacts. If they work in – or have recently visited or attended – one of the following settings, the contact tracing process will be escalated to local public health experts, who will liaise as necessary with the manager of the relevant setting:
    • a health or care setting, for instance a hospital or care home
    • a prison or other secure establishment
    • a school for children with special needs
    • any setting where there is a risk of a local outbreak.
  • In other cases, any non-household contacts who need to self-isolate will be contacted by the NHS test and trace service.
  • If multiple cases of coronavirus appear in a workplace, an outbreak control team from either the local authority or Public Health England will, if necessary, be assigned to help the employer manage the outbreak. Employers should seek advice from their local authority in the first instance.
  • The guidance also suggests that workers who think the contacts that have triggered notifications are workplace contacts should ask their employer to consider what further mitigating actions could be taken to reduce the risk of COVID-19, such as using screens to separate people or ‘cohorting’ to reduce the number of people each person has contact with.
  • The NHS test and trace service will provide a notification that an employee can use as evidence to inform their employer that they have been told to self-isolate pursuant to this service.  Employers will need this evidence if they are a small or medium sized employer claiming a rebate for SSP.

Client briefings

We have published a new client briefing on post-lockdown issues for employers, available here.

We have also developed a Toolkit to assist businesses prepare their own office-based risk assessments; please contact us if this is of interest.

Our latest briefing on the Coronavirus Job Retention Scheme is available here.

Our COVID-19 hub containing more insights across a range of topics is here.

Australia: Summary of changes to the Coal Mining Safety and Health Act 1999 (Qld)

This article outlines the implications of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) (the Bill) on the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The Bill was passed with amendment on 20 May 2020.

The Bill has:

  • Introduced an industrial manslaughter offence;
  • Clarified the appointment requirement for statutory office holders; and
  • Clarified costs orders in relation to criminal proceedings before the Industrial Magistrates Court.

We discuss each of these below in more detail.

Introduction of industrial manslaughter

The CMSH Act will hold employers or senior officers liable for actions or omissions involving criminal negligence (recklessness or gross negligence) which result in worker fatalities.

The CMSH Act now includes an offence for industrial manslaughter for an employer or senior officer where a worker dies:

  • In the course of undertaking work or is injured and later dies; and
  • The employer or senior officer’s conduct causes the death; and
  • The employer or senior officer is negligent about causing the death.

The maximum penalty for an individual is 20 years and 100,000 penalty units for a body corporate ($13.345 million).

Industrial manslaughter will be an indictable offence and the usual criminal procedural requirements will apply, including the onus of proof. The guideline for industrial manslaughter prosecutions will be the same as those for manslaughter under the Criminal Code. The decision to prosecute will be made by the independent Work Health and Safety (WHS) prosecutor.

Similar to other manslaughter offences, as an indictable offence, industrial manslaughter under the CMHS Act will have no time limitation period for prosecution. Importantly, the defence of accident does not apply.

Clarification of appointment requirements for statutory office holders

The Bill amends the CMSH Act to clarify that only persons who are employees of a coal mine operator may be appointed as certain statutory office holders.

The following statutory roles can only be occupied by employees (not contractors) of coal mine operators:

  • Site Senior Executives (SSE), including anyone appointed to that role during a temporary absence of an SSE;
  • Open Cut Examiners (OCE);
  • Underground Mine Managers (UMM), any alternative UMM or any persons appointed to be responsible for the control and management of underground activities when the UMM is not in attendance at the mine;
  • Persons appointed to have control of activities in one or more explosion risk zones in an underground mine;
  • Persons appointed to have control of mechanical and electrical engineering activities of an underground mine; and
  • Ventilation Officers and anyone appointed to that role in the absence of the Ventilation Officer.

Maximum penalties of 500 penalty units ($66,725.00) apply for coal mine operators who fail to ensure compliance with the requirements. A transitional period of 18 months for compliance has been adopted to ameliorate the impacts on any existing statutory office holders who currently have a different employment status, such as contractors.

Clarification of costs orders

The Bill amends the CMHS Act to provide that costs orders for representation may be made for criminal proceedings before the Industrial Magistrates Court. The Bill also retrospectively validates costs orders made by an Industrial Magistrates Court in relation to a proceeding for an offence against the Act prior to December 2014.

This article was written by Aaron Anderson, Partner and Natalie Lesco, Graduate.

If you would like advice on these issues, please contact a member of the HSF team.

Aaron Anderson
Aaron Anderson
Partner, Brisbane
+61 7 3258 6528

 

 

Asia Employment, Pensions and Incentives Update May 2020

Our Asia Employment, Pensions and Incentives update this month looks at:

  • the new measures in South Korea introducing paid emergency childcare leave to ease the burden on working parents;
  • the Employment Adjustment Subsidy in Japan, intended to try and prevent employers from resorting to immediate redundancies;
  • in Thailand, the new data protection rules and how they impact the collection of COVID-19 data;
  • this month’s Asia Comparative Article, which looks at the requirements and restrictions around the use of fixed term employment contracts in Singapore, Hong Kong, Thailand, Taiwan and the PRC; and
  • our Compliance Check this month, which will help businesses ready for reopening in Singapore and sets out the Safe Management Measures that need to be implemented.

In addition, our Hong Kong team recently published an article for employers returning to work. You can access that article here.

For those of you that missed our termination of employment webinars, you can access the Thailand webinar here and the SEA (Singapore, Malaysia & Philippines) webinar here.

Finally, don’t forget our upcoming regional webinar on return to work measures, taking place on 21 May 2020. You can register for that webinar here.

 

 

 

Fatim Jumabhoy
Fatim Jumabhoy
Partner, Singapore
+65 6868 9822
Narendra Adiyasa
Narendra Adiyasa
Partner, Jakarta
+62 21 3973 8000
Tess Lumsdaine
Tess Lumsdaine
Senior Associate, Hong Kong
+852 2101 4122
Rebecca Lim
Rebecca Lim
Associate, Singapore
+65 6868 8063
Gillian Miao
Gillian Miao
Counsel, Mainland China
+86 21 2322 2325

UK COVID-19: launch of online scheme to reclaim SSP, 5 steps to working safely, new guidance from ICO, EHRC and ACAS

1) This morning the Government announced that an online Coronavirus Statutory Sick Pay Rebate Scheme will be launched on 26 May for small and medium-sized employers to recover Statutory Sick Pay (SSP) payments they have made to their employees due to COVID-19-related absence.

2) Following on from last week’s guidance on creating COVID-19 Secure workplaces, the government has also published “Practical actions for businesses to take based on 5 main steps“.  Action points are given under 5 headings:

  1. Carry out a COVID-19 risk assessment
  2. Develop cleaning, handwashing and hygiene procedures
  3. Help people to work from home
  4. Maintain 2m social distancing, where possible
  5. Where people cannot be 2m apart, manage transmission risk

The government has also updated the guidance for the Access to Work scheme to make clear that eligible disabled employees may claim financial support where they need to work from home as a result of the COVID-19 pandemic

3) The Information Commissioner’s Office (ICO) has published a helpful new set of FAQs for employers on COVID-19 workplace testing.  The ICO accepts that employers will often be able to show a legitimate reason for processing health data in compliance with the GDPR, as long as they are not collecting or sharing irrelevant, inaccurate or unnecessary data.  Employers should carry out, and continually review, data protection impact assessments covering any new testing activity.  Data must be processed securely and kept for no longer than necessary, and transparency will be critical.  Employers should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues, but should avoid naming individuals if possible, and should not provide more information than is necessary. The ICO notes that the use of temperature checks or thermal cameras on site may not be proportionate if the same results can be achieved through other, less privacy intrusive, means.

4) Acas has recently published guidance on the conduct of disciplinary and grievance procedures during the COVID-19 pandemic, noting that an employer will need to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while employees are furloughed, socially distancing at work or working from home.  Relevant factors include the health and wellbeing of employees, the individual circumstances, sensitivity and urgency of the case, any reasonable objections from those involved, and access to technology and evidence.  The arrangements must allow an employee to fully exercise their right to be accompanied.

Employers should treat with caution the guidance concerning employees on furlough.  The guidance suggests that an employee on furlough can act as investigator, meeting chairperson or notetaker for an employer and can give evidence.  However, in our view, such activities would likely amount to doing “work” for the employer which is prohibited by the terms of the Coronavirus Job Retention Scheme and could therefore break furlough and remove or curtail an employer’s ability to claim reimbursement for those employees under the scheme. The guidance also suggests that only voluntary involvement in a disciplinary or grievance process is permitted while on furlough, which seems odd given it is hard to characterise an employee being subjected to a disciplinary process as “doing it out of their own choice”.

5) Acas has also updated its general COVID-19 guidance for employers and employees and published new guidance on mental health during the pandemic.

6) The Equality and Human Rights Commission has published COVID-19 guidance for employers on avoiding discrimination when making decisions on furlough, redundancy, working from home and so on, as well as specific guidance covering employees who are pregnant or on maternity leave.

UK COVID-19: employers should reflect updated symptoms in workplace policies and notices

The UK Government has this morning updated its guidance on self-isolation for COVID-19, reflecting updated medical advice.  From today:

  • individuals will need to self-isolate immediately if they develop a new continuous cough or fever or a loss or changed sense of normal smell or taste (anosmia).   The individual should stay at home for 7 days, or longer if they still have symptoms other than cough or loss of sense of smell.
  • all members of their household must also self-isolate for 14 days according to current guidelines, unless the symptomatic individual receives a negative test result.

Employers should ensure relevant workplace policies and notices are updated to reflect this new advice.

UK COVID-19: People: new workplace guidance to assist restart

New workplace guidance covering 8 workplace settings has now been published by BEIS:

  1. Construction and other outdoor work
  2. Factories, plants and warehouses
  3. Home environments
  4. Labs and research facilities
  5. Offices and contact centres
  6. Restaurants offering takeaway or delivery
  7. Shops and branches
  8. Vehicles (covering couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar)

The guidance applies to businesses currently open and also includes guidance for shops which may be in a position to begin a phased reopening at the earliest from 1 June.

The new guidance follows a similar structure for all 8 workplaces and sets out practical steps for businesses focused on 5 key points, which BEIS states should be implemented as soon as it is practical:

1. All reasonable steps should be taken by employers to help people work from home. Those who cannot work from home and whose workplace has not been told to close should be working, once the employer has confirmed when their workplace will open.

2. Employers will need to carry out COVID-19 risk assessments in consultation with their workers or trade unions, to establish what guidelines to put in place. The results of the risk assessment should be shared with the workforce.  Employers should consider publishing the results of their risk assessments on their website if possible, and all businesses with over 50 employees are expected to do so.

3. Employers should re-design workspaces to maintain 2 metre distances between people wherever possible, by staggering start times, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in break rooms.

4. Where people cannot be 2 metres apart, employers should manage the transmission risk. They should look into putting barriers in shared spaces, creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, or ensuring colleagues are facing away from each other.

5. Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.

A downloadable notice is included in the documents, which employers should display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance.

The guidance also addresses the issue of vulnerable workers (but not the extremely clinically vulnerable who are shielding) who are unable to work from home.  The guidance states that they should be offered the option of the safest available on site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, employers should carefully assess whether this involves an acceptable level of risk taking into account specific duties to those with protected characteristics (so, for example, expectant mothers are entitled to suspension on full pay if suitable roles cannot be found). “Particular attention should also be paid to people who live with clinically extremely vulnerable individuals.”

Guidance for other sectors that are not currently open will be developed and published ahead of those establishments opening to give those businesses time to plan. On 13 May the Government set up five taskforces to work with these sectors to develop safe ways for them to open at the earliest point at which it is safe to do so, as well as pilot re-openings to test businesses’ ability to adopt the guidelines. The five taskforces cover:

• pubs and restaurants
• non-essential retail (including salons)
• recreation and leisure, including tourism, culture and heritage, libraries, entertainment and sport
• places of worship, including faith, community and public buildings
• international aviation.

 

UK COVID-19: People: 11 May update to Government guidance

Following the Prime Minister’s announcement yesterday evening, the Government has today published some further details of its roadmap for coming out of lockdown, OUR PLAN TO REBUILD: The UK Government’s COVID-19 recovery strategy.

This makes clear that the change in emphasis highlighted by the Prime Minister is intended to apply from Wednesday 13  May. The plan confirms (at page 25) that:

  • For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible, not least as this will minimise the risk of overcrowding on transport and in public places. (The plan also makes clear that social distancing is to be followed rigorously on public transport and the use of home-made face-coverings is recommended.)
  • All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example this includes food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions to this are those workplaces such as hospitality and non-essential retail which during this first step the Government is requiring to remain closed.
  • As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines, which will be published this week.
  • It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work.  Those people should self-isolate, as should their households.

The second stage of adjustments, which will be no earlier than 1 June, proposes beginning a phased return for primary school children, re-opening non-essential retail when and where safe and subject to being compliant with the COVID-19 Secure guidelines (with further guidance on the phasing and timeframes promised shortly), and re-opening more local public transport in urban areas subject to strict safety measures (page 30).

The third stage, which will be no earlier than 4 July, will include opening at least some of the remaining businesses and premises that have been required to close, including personal care, hospitality, public places and leisure facilities, where and to the extent that these can re-open safely (page 31).

Page 41 and Annex A at page 53 set out existing general COVID-19 Secure guidelines including keeping at a 2m distance, hand hygiene, washing clothes, and keeping areas well-ventilated. Measures to limit the number of people with whom there is regular contact should be taken, such as changing shift patterns and rotas to keep smaller, contained teams.  Businesses should take reasonable steps to avoid people being gathered together, for example by allowing the use of more entrances and exits and staggering entry and exit where possible.  Employers should consider staggering working hours and expanding bicycle storage facilities, changing facilities and car parking, to help minimise the demands on public transport.  The importance of frequent cleaning is also highlighted, in particular in relation to communal surfaces such as door handles, lift buttons, bathrooms, kitchens and tea points.

In Parliament this afternoon the Prime Minister stated that the guidelines on places of employment will be published this evening and guidance on transport will be made available on Tuesday.  He emphasised that employees should only be going to work once workplaces have been made COVID-19 Secure and mentioned that spot checks would be used to ensure compliance.

More accessible guidance is available here:

Further announcements on changes to the Coronavirus Job Retention Scheme are expected in the next couple of days, with rumours of an extension to the end of September and possibly the tapering of grants from 80% of capped wages to 60%.  The guidance on making a claim and the step-by-step guide have recently been updated to reflect the fact that claims can now be saved and returned to within 7 days rather than having to be completed in one go.

Employers considering new health and safety measures may find Airbus’s detailed plan on social distancing at work a useful starting point – this is available on the CBI website here.  The CBI also has a useful Q&A page for employers here.

Australia: COVID-19 – This week in Employment (1 May 2020)

This week saw the introduction of the COVIDSafe application, which is designed to speed up the process of contacting people who have been potentially exposed to COVID-19.

Further guidance has been released in relation to the JobKeeper legislation and by SafeWork Australia regarding work health and safety considerations.

More information regarding these developments in the employment space this week are outlined below.

A reminder that at any time you can visit our Wellbeing and Culture page, view our webinar series, listen to our podcast channel or read the most relevant COVID-19 legal insights from across our global network.

Introduction of the COVIDSafe App

The Australian Government has launched the new voluntary COVIDSafe App, which seeks to increase the respond rate to local outbreaks. The App tracks and identifies whether an individual has been in close contact with a person diagnosed with COVID-19.

The COVIDSafe App was passed under the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – Public Health Contact Information) Determination 2020 (Cth) which provides privacy protection for data collected through the App. To read this determination, please follow this link.

From an employment perspective, it is important to note that a person (including an employer) cannot require another person (including an employee) to download COVIDSafe to a mobile device. There are also other similar prohibitions.

More information on the COVIDSafe App can be found here and on the Department of Health’s website.

JobKeeper ‘one-in, all-in’ principle

Treasurer Josh Frydenberg has announced that the Government will update the JobKeeper rules to emphasise the “one-in, all-in” principle.

In a JobKeeper update issued on Friday, Frydenberg said the that this principle will ensure that employers cannot select which eligible employees will participate in the scheme. Rather, if an employer decides to participate in the JobKeeper scheme and their eligible employees have agreed to be nominated by the employer, the employer must ensure that all of these eligible employees are covered by their participation in the scheme.

The Treasurer’s full announcement can be found here.

JobKeeper extension and updated payment verification process

The ATO has extended the time to enrol for the initial JobKeeper periods from 30 April 2020 until 31 May 2020. This means that, if businesses enrol by 31 May, they will still be able to claim for the fortnights in April and May, provided they meet all the eligibility requirements for each of those fortnights.

For the first two fortnights (30 March – 12 April, 13 April – 26 April), the ATO will accept the minimum $1,500 payment for each fortnight provided it is paid by 8 May 2020.

Additionally, the Australian Government recently introduced the Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 1) 2020. This instrument amends the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 to require the Commissioner to verify JobKeeper payment information with authorised deposit-taking institutions.

Please follow this link to view the new instrument.

You can also find more information on the JobKeeper application process here and on the ATO website.

Release of the JobKeeper disputes benchbook

The Fair Work Commission has released the JobKeeper disputes (Coronavirus economic response) benchbook to assist parties lodging or responding to JobKeeper dispute applications under the Fair Work Act 2009 (Cth) (link here).

The FWC have now clocked over 120 applications to deal with disputes under the scheme, while a union-run ‘Jobscammer’ website recorded more than 250 responses in its first week.

SafeWork

SafeWork Australia has recently released new guidance material including:

  • guidance that outlines key considerations when undertaking a risk assessment associated with COVID-19 (link here);
  • a template with examples of a risk register to assist businesses in assessing the risks associated with COVID-19 (link here);
  • a factsheet to provide guidance for Registered Training Organisations in delivering an introductory safety training course through connected real-time delivery (link here); and
  • a template to assist businesses with drafting an emergency plan (link here).

JobKeeper Navigation App is now live!

We have developed the JobKeeper Navigation App (which is designed to help you understand this scheme, whether you are eligible to receive this payment and what steps you should take next).

You can access the App here. We recommend using the Google Chrome browser to get the best web experience.

Weekly webinar

This week’s webinar hosted by Merryn Quayle (Partner in our Disputes team) discussed how to manage supply chain issues. John Laing (Senior Expert, McKinsey) explores how businesses are coping with supply chain issues and what’s next, Kristin Stammer (Partner in our Corporate team) explores terms and products, Patrick Gay (Partner in our Competition team) discusses excessive pricing and ACCC relaxation of enforcement, and Nanda Lau (Partner in our Corporate team in China) looks at China, specifically shifting supply chains elsewhere and the state of China’s supply chain market.

Click here to access the webinar.

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