Australia: After the Election: Changes to Safety Right of Entry?

The paucity of detail on the ALP’s law reform agenda in respect of right of entry could mean one of two things. No significant reform is planned, or details of proposed reforms will not be released until after the election. We expect the latter is more likely. Click here to read the latest article in our Federal Election series, written by Anna Creegan, Partner; Rachel Lee and Rickelle Kenny, Solicitors from our Perth office.

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Taiwan: Changes to Labour Dispute Resolution Mechanism

On 9 November 2018, the Legislative Yuan of Taiwan passed the third reading of the Labour Procedure Act (“LPA”). The LPA sets out procedural requirements for labour disputes. In particular, the LPA governs the process of establishing ationation proceedings, provisional remedy proceedings, as well as litigation proceedings. Implementation of the LPA is expected to promote efficiency and fairness in the resolution of labour disputes in Taiwan. Continue reading

Japan: Improving the Treatment of Non Regular Workers

While Japan has seen an increase in the number of non-regular workers (part-time, fixed-term or dispatched workers), the terms and conditions of employment have traditionally been inferior to those offered to regular employees. Japan has recently amended the Act on Improvement of Employment Management for Part Time and Fixed Term Workers and established the Act on Improvement of Employment Management for Part Time and Fixed Term workers. These measures are aimed at ensuring that non-regular workers are treated no less favourably than regular workers with substantially similar employment circumstances. Continue reading

Australia: Federal Election Reforms

We’re delighted to have launched our Australian Federal Election Reforms – IR Policy and the 2019 Federal Election hub. Look forward to weekly additions to this site focusing on the practical impacts for business in the face of the upcoming election.

This week, Rohan Doyle considers Enterprise Bargaining – if it’s ‘Broken’, is there a Fix Ahead? 

In case you missed last week’s article, Anthony Longland investigated the ALP Industrial Relations Policy. Discover more by clicking here. Continue reading

UK: Government consultation on regulation of confidentiality clauses in settlement agreements and employment contracts

Further to its response to the Women and Equalities Select Committee report last December (see here), the Government is consulting until 29 April 2019 on proposals to regulate confidentiality clauses (commonly referred to as “NDAs” or non-disclosure agreements) in employment contracts and settlement agreements.  The Government has rejected calls to ban the use of such clauses in harassment and discrimination cases, but instead proposes:

  • clarifying in law that no provision in an employment contract or settlement agreement can prevent someone making “any kind of disclosure to the police … whatever the issue or disclosure, regardless of whether it meets any legislative whistleblowing tests”. The consultation asks whether this should be extended to disclosures to any other persons, and whether any other limitations should be imposed.
  • requiring a clear, written description of rights to be given to the employee before anything is signed, to be included in confidentiality clauses in employment contracts or within a settlement agreement. The Government does not feel that a prescribed form of wording is helpful, as it could quickly become out of date, but suggests legislation that requires confidentiality clauses to make clear that they cannot prevent whistleblowing disclosures, reporting of criminal offences, discussing any matter with the police, or highlighting other relevant statutory obligations such as disclosing information to a court. In relation to employment contracts, the confidentiality provisions and limitations on them should be summarised in the written statement of particulars (and would be subject to the current enforcement provisions allowing tribunals to increase compensation awards by 2 to 4 weeks’ pay if other claims are brought successfully). A confidentiality clause in a settlement agreement that does not meet the new wording requirement would be void in its entirety.
  • in relation to settlement agreements, extending the requirement for the employee to receive independent advice so that, for the settlement agreement to be valid, the advice must cover the nature and limits of any confidentiality clauses in the settlement agreement and the disclosures a worker is still able to make.

The Government is not proposing making it a criminal offence to propose a confidentiality clause designed to prevent whistleblowing or reporting of a criminal offence given the difficulties of enforcement. Equally, there is no mention of any proposal to require businesses to notify the use of settlement agreements with non-disclosure provisions to some form of regulator. The consultation document is here.

The proposals go slightly further than the SRA warning notice and Law Society guidance issued earlier this year, in particular in suggesting that any confidentiality clause should expressly permit discussing any issue with the police and requiring independent advice on a settlement agreement specifically to cover the scope of the confidentiality clause. Pending the outcome of the consultation, it would be prudent to update existing template settlement agreements to comply with current best practice as set out in the SRA/Law Society guidance, in particular to make clear what types of disclosure remain permitted notwithstanding the confidentiality agreement.

Having an express carve-out for permitted disclosures will become critical should the proposals be adopted, as a failure to do so would prevent an employer from enforcing the confidentiality provision in its entirety. Employers would also need to consider revisions to confidentiality clauses in employment contracts and written statements of particulars – the consultation does not address to what extent it will be necessary to amend these for the existing workforce or whether the obligation will only arise if an existing employee requests a new statement or is issued with a new statement due to some other change in terms. Employers could also face demands for a higher contribution to an employee’s legal fees on a negotiated settlement given the greater extent of the required independent advice.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819