Workers may be entitled to whistleblower protection in broader circumstances than employers expect. It is clear that specific facts must be conveyed (which the worker reasonably believes tend to show one of six specified types of wrongdoing). However, although a simple allegation that an employer has breached a particular legal obligation is not enough by itself, the Court of Appeal has confirmed that the context can be taken into account, including gestures communicated at the same time, in determining whether facts have also been conveyed.
UK: Whistleblowing – a Protected Disclosure Must Include Specific Facts, but These Can be Deduced From the Context of an Allegation
Filed under Jurisdiction: UK, Whistleblowing
Australia: Federal Modern Slavery bill introduced to parliament
Closely following the passage of the NSW Modern Slavery Act on 21 June 2018 (NSW Act), a federal Modern Slavery Bill was introduced to Parliament on 28 June 2018. Debate on the Bill has been adjourned until the next Parliamentary sittings period, which begins in August 2018. The Government has reaffirmed its commitment to pass the Bill before the end of the year.
APAC: Background Checks
This month, we consider whether employers can conduct background checks by way of social media/internet searches on prospective employees, focussing on the position in Singapore, Hong Kong, Japan and South Korea.
Filed under Data protection and privacy, Jurisdiction: Asia
Korea: Handling Employee Data
Under the Personal Information Protection Act (“PIPA”) any company which handles personal data will be deemed a ‘data handler’ and must comply with strict requirements. This includes employee personal data.
Filed under Data protection and privacy, Jurisdiction: Asia
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.
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.
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.
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
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
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