Personal/carer’s leave sweeter for shiftworkers

In Mondelez Australia Pty Ltd [2018] FWC 2140 the Fair Work Commission (Commission) confirmed shiftworkers are entitled to 10 days of personal/carer’s leave to be taken and accrued as a daily entitlement based on the hours ordinarily worked by a particular employee in a day. As a result, shiftworkers are entitled to payment for the full duration of their shift whilst on personal/carer’s leave rather than a standard 7.6 hours per day.

The Fair Work Commission reached a similar decision again this year in Australian Workers’ Union, The v AstraZeneca Pty Ltd [2018] FWC 4660 when it was asked to rule on how personal/carer’s leave is to be calculated for shiftworkers at pharmaceutical company, AstraZeneca Pty Ltd. In this case, the Commission held the entitlement to personal/carer’s leave differs between the employer’s rosters of 12 hour shifts and 10.28 hour shifts, and should not be calculated based on an average of hours worked.

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Employee rights in France in the event of bereavement

The occurrence of certain events in an employee’s personal life may give rise to authorized leave for family reasons, particularly in case of bereavement.

The French labor code provides for a list of events entitling an employee to take leave. These provisions are of Public Order and therefore cannot be derogated from in a way that is less favourable to the employee.

However, it is not rare for sector wide/ company-wide collective bargaining agreements to provide for more favourable provisions (in terms of events triggering the allocation of family leave, duration of each family leave, and payment therefor).

During family leave, the employee’s employment contract is suspended. The employee’s absence cannot be a reason for disciplinary actions / dismissal.

Duration of bereavement leave

In the event of the death of a relative, all employees are entitled to a leave of absence, the duration of which depends upon their relationship with the deceased person:

  • 3 days for the death of a spouse or partner (whether or not a a civil partnership (“PACS”) has been entered into), a direct ascendant (father, mother), father-in-law, mother-in-law, brother or sister;
  • 5 days for the death of a child.

Who may be entitled to bereavement leave ?

All employees are entitled to benefit from such family leave provisions, regardless of the company’s headcount and seniority of the employee.

Moreover under French law, heterosexual and homosexual couples benefit from the same family leave rights, as marriage and adoptive filiation trigger the same effects recognized by law whether the spouses or parents are of the opposite or same sex.

In addition, employees bound by a PACS benefit from the legal family leave provisions granted to them as a consequence of the conclusion of such partnership and in the event of the death of their partner. However, while a civil partner is entitled to bereavement leave for the death of their partner, such leave is not available in the event of the death of their partner’s parent.

Bereavement leaves resulting from the French labor code are fully paid.

Which procedure must be followed ?

In order to benefit from a family leave, the employee must inform the employer of his / her intention to benefit from the leave by “any means making it possible to ensure a certain date“. Such leave must be taken at the time of the event triggering the leave. Appropriate evidence must be produced by the employee (such as a certificate of death).

The dangerous combination of the right to disconnect and the concept of on call-duty

French law implemented in 2017 the “right to disconnect” from digital tools, requiring employers to limit employees’ use of digital tools outside of office hours.

The purpose of this legislation is to protect the employees’ work-life balance and their right to rest periods.

The law did not provide details of how employers should implement the right to disconnect as the employer is supposed to negotiate such modalities with its unions. In the absence of agreement, the employer is required to prepare a charter, after having consulted the works council or the staff representatives.

The law did not provide any specific sanction in the event of breach of such obligation.

In a recent case of 12 July 2018, the Supreme Court decided that the absence of disconnection amounted to being on call all the time and that the employee had the right to be compensated pursuant to the on call duty (astreintes) regulations.

Such on call duty regulations were modified in 2016 and no longer include the concept of having to stay at home in order to be at the disposal of his employer. The concept of being on call is defined as the period of time during which the employee is not at his place of work but is available to be in a position to intervene if need be. Such regulations oblige the employer to compensate such period financially or by allocating additional days of rest to the employee. The amount of such compensation is not specifically provided by law but must  be fixed by the sector wide collective agreement or a company agreement.

The case specifically related  specifically to a company which had implemented a policy under which the employee had the obligation to leave his phone permanently on, in order to be able to respond to solicitations from his subordinates or from clients. However, the employer did not consider this to be covered by the on call duty regulations.

For the Supreme Court, the employee had to be permanently available with his mobile to be able to answer any calls so that he could intervene in case of need. Therefore, the court decided the fact the employee had to remain “connected” clearly fell within the scope of the on call duty regulations and that the employee should have been compensated for it.

The company was ordered to pay 60,000 euros to the employee as back payment of the on call duty compensation.

Therefore, a breach of the right to disconnect may allow the employee to claim the specific compensation provided by the sector-wide collective bargaining agreement or company agreement.

This position of the Supreme Court could lead to numerous litigations with employees as it absolves the employees from having to demonstrate a specific loss to justify a claim for damages and enables them to claim directly the payment provided under the collective bargaining agreement.

Stärkere Kontrollen bei Dienstreisen erwartet: Erfordernis von A1-Bescheinigungen

Mit einer Entscheidung vom 6. September 2018 stärkte der EuGH (C-527/16) die Bedeutung der sozialversicherungsrechtlichen A1-Bescheinigung. Zur Vermeidung doppelter Sozialversicherungsbeiträge in zwei verschiedenen EU-Staaten bescheinigt dieses Entsendeformular, welches Sozialsystem für einen Versicherten zuständig ist. Die A1-Bescheinigung ist selbst bei sehr kurzen Dienstreisen ins Ausland erforderlich und zwar sowohl für Arbeitnehmer als auch für Selbstständige.

Der EuGH entschied nun, dass eine vom zuständigen Träger eines Mitgliedstaats ausgestellte A1-Bescheinigung sowohl für die Träger der sozialen Sicherheit als auch für die Gerichte des anderen Mitgliedstaats, in dem die Tätigkeit ausgeübt wird, verbindlich ist, solange sie von dem ausstellenden Mitgliedstaat weder widerrufen noch für ungültig erklärt worden ist. Dies gilt auch, wenn im Zeitpunkt der Ausstellung einer rückwirkenden A1-Bescheinigung bereits eine Entscheidung des zuständigen Sozialversicherungsträgers am Tätigkeitsort vorliegt, dass der betreffende Arbeitnehmer der Pflichtversicherung dieses Mitgliedstaats unterliege. Selbst wenn die Bescheinigung zu Unrecht ausgestellt wurde, behält sie bis zu einer Rücknahme ihre Wirksamkeit – sofern es sich nicht um einen Betrug oder Rechtsmissbrauch handelt.

In der Praxis wird die Bedeutung der A1-Bescheinigung häufig noch unterschätzt. Bereits seit Inkrafttreten der EG-Verordnung 883/2004 dürfen Unternehmen selbst bei sehr kurzen Auslandsaufenthalten ihrer Mitarbeiter die Weitergeltung der deutschen Rechtsvorschriften nicht mehr selbst bescheinigen. Stattdessen müssen sie bei dienstlichen Aufenthalten ihrer Mitarbeiter jeweils im Voraus bei der gesetzlichen Krankenkasse des Mitarbeiters bzw. des Rentenversicherungsträgers die Erstellung einer A1-Bescheinigung beantragen.

Schwierigkeiten wirft dies insbesondere bei sehr kurzfristig geplanten Auslandseinsätzen auf, z.B. für Besprechungen oder spontane Montageeinsätze. In diesen Fällen sollte, wenn die Bescheinigung nicht rechtzeitig erteilt wird, ersatzweise der eingereichte Antrag auf Erstellung der A1-Bescheinigung mitgeführt werden. Damit ist eine Berufung auf die Durchführungsverordnung der EU (Art. 15 Abs. 1 VO EG Nr. 987/2009) möglich, nach der „die Unterrichtung an den zuständigen Träger im Mitgliedstaat im Voraus, wann immer dies möglich ist“ zu erfolgen hat.

Die Kontrollen des Vorliegens der erforderlichen A1-Bescheinigung werden nach einer Ankündigung der Krankenkassen in Zukunft erheblich zunehmen. Jede Besprechung, jeder kurze Workshop, sogar das Tanken im Ausland in der Dienstzeit kann spätestens ab 2019 kontrolliert werden. Liegt die A1-Bescheinigung nicht vor, können Verwarnungsstrafen fällig werden und der betroffene Mitarbeiter am Betreten des ausländischen Dienstgebäudes gehindert werden.

Um der zu erwartenden Antragsflut Herr zu werden, setzen zumindest in Deutschland die Krankenkassen auf Automatisierung. Bereits seit 2018 können A1 Bescheinigungen aus einigen Lohnabrechnungsprogrammen beantragt werden. Ab 1. Januar 2019 löst das elektronische Verfahren standardmäßig die früheren Papieranträge ab, die jedoch bis zum 30. Juni 2019 alternativ noch weiter genutzt werden können.

FIFO worker engaged as a casual entitled to annual leave

A FIFO worker who was purportedly engaged as a “casual” under an enterprise agreement has successfully claimed an entitlement to annual leave under both the National Employment Standards (NES) and the terms of the enterprise agreement.

The full Federal Court decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 opens the way for further claims by employees who are engaged as casuals but work regular and consistent hours.

Designation as a “casual” and payment of a casual loading are not determinative

In this case, the employee:

  • was engaged by labour-hire company WorkPac as a “casual” in the employment terms and conditions, which included an enterprise agreement;
  • consistently worked 12 hour shifts over an approximately 2 year period on a “7 days on, 7 days off” roster that was set 12 months in advance;
  • was provided with flights and accommodation at no cost under a FIFO arrangement; and
  • was paid a flat hourly rate, although this did not expressly include or refer to a casual loading.

The Court said that designation as a “casual” and the payment and acceptance of a casual loading were not determinative.  Rather, the conduct of the parties and the real substance or practical reality of the relationship were to be objectively considered.

The fact that an employee could potentially be paid twice for the same entitlement due to payment of a casual loading was not a basis for finding that the employee was a “casual”.

The Court ultimately found that the employee was a permanent employee for the purposes of both the NES annual leave provisions and the enterprise agreement.

The essence of casualness under the NES annual leave provisions

The Court rejected WorkPac’s argument that because the employee was designated as a casual under the enterprise agreement, it followed that the employee was a “casual employee” for the purpose of the NES annual leave provisions.

The Court said that the meaning of “casual employee” in the NES annual leave provisions was the legal meaning, the essence of which is “the absence of a firm advance commitment as to the duration of the employee’s employment or the days or hours the employee will work”.  Key indicators of such an absence will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work.

The employee did not meet this test, because:

  • his pattern of work was regular and predictable, continuous and not subject to significant fluctuation; and
  • there was plainly an expectation that he would be available on an ongoing basis to perform the duties required of him (as evidenced by the roster set 12 months in advance and the FIFO arrangements).

The meaning of “casual” under an enterprise agreement depends on the terms of agreement

The agreement allowed for “casual” employees but did not specifically define what that category of employee meant, other than stating that they were engaged by the hour and either paid a casual loading or a flat rate of pay which incorporated a casual loading.  WorkPac was to “inform” each employee of their status at the time of their engagement.

In the absence of a specific definition or other mechanism for the categorisation process, the Court held that the term “casual” in the agreement was intended to have its legal meaning.  This employee was not a “casual” according to that meaning (for the reasons discussed above).

The act of merely informing the employee of the employer’s understanding that the engagement was a “casual” one did not override this.

Now is the time for employers to review their casual engagements

Each engagement is likely to be different and needs to be considered on its individual facts, along with the terms of any enterprise agreement.  Casual engagements should also be periodically monitored, as the nature of an engagement can change over time.

If you have concerns about the basis for a casual engagement or whether appropriate entitlements have been provided, seek legal advice.

When reviewing and monitoring your engagements, keep in mind the following:

  • Even if an employee is purportedly engaged as a “casual” and paid a casual loading, these factors are not determinative of whether the employee is in fact a casual for the purpose of the NES provisions. A Court will assess the real substance of the relationship between the parties, and apply the legal meaning of “casual employee” referred to above.
  • Even if the employee is purportedly engaged as a casual under an enterprise agreement, whether that employee is in fact a casual for the purposes of the agreement will depend on how the term “casual” is to be interpreted under the agreement. This will depend on the terms of the enterprise agreement (including whether there is a definition of “casual” or other mechanisms that impact on the categorisation process).
  • The employee in this case only claimed annual leave, however the decision leaves it open for workers to claim other permanent entitlements such as personal leave, notice of termination and redundancy pay.

Dress code in the workplace

South Africa has no formal guidelines or regulations canvassing the often controversial topic of office dress code. However both the Employment Equity Act of 1998 (EEA) and the Labour Relations Act No 66 of 1995 (LRA) contain provisions outlawing discrimination and dismissals related to discrimination. What is deemed appropriate will be dictated by the industry and the individual nuances of the company itself but is always subject to anti-discrimination laws. Companies are permitted to introduce a company policy in respect of grooming and clothing standards required by employees in the workplace. This policy may be required owing to the nature of the industry or for the safety of the employees themselves.

What type of company policies are permitted?

Employee dress codes are permitted provided that the policy has “some justification in commonly accepted social norms” and is “reasonably related to the employer business needs.” (Carroll v Talman Federal Savings and Loan Association of Chicago)  If this standard is met the courts are reluctant to interfere with the policy as it falls within management’s prerogative. However, such policies must be carefully worded to ensure there is no unfair discrimination.

The South Africa Constitution and the Equality Act protect individuals against unfair discrimination and protects their rights to enjoy their culture and practice their religion and companies must be cognisant of this when drafting dress code policy.

Discriminatory dress codes

Discrimination is regulated by s6 of the EEA and prohibits both direct and indirect forms of discrimination in the employment arena. This applies to how your employees dress. A dress code would be considered discriminatory if it imposes stricter requirements on one group of employees than on others. An example of this would be requiring female staff to wear heels or for only male employees to wear uniforms. However, if there is justification for the discrimination such as requiring steel workers to wear safety helmets and glasses whilst not requiring the same from the office workers at the factory, this will be seen as rational and permitted. The courts will approach this from a rational perspective and assess the necessary business requirements of the company.

Right to culture and religion

Section 187(1)(f) of the LRA renders a dismissal ‘automatically unfair’ if the reason for that dismissal is that the employer unfairly discriminated against an employee on any arbitrary ground including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

Case law on the topic of dress code in the workplace predominately focuses on dismissals related to alleged unfair discrimination. One of the leading cases on the subject, Department of Correctional Services and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 (SCA) assessed whether the employees, male prison guards,  dismissal was directly related to their failure to adhere to the company grooming policy which did not permit male guards to wear their hair in dreadlocks.

The employees alleged that this was unfair discrimination on two grounds. Firstly, that it is discriminatory as no such rule was applied to female guards. Secondly, that Xhosa culture requires individuals to obey the call of the ancestors to become traditional headers which necessitates wearing their hair in dreadlocks.

Once discrimination on a listed ground is established, unfairness is presumed unless the employer proves otherwise. A discriminatory practice can only be justified in terms of s187(2)(a) of the LRA, namely that the dismissal is based on an inherent requirement of the job. The court held that the dismissal did amount to discrimination as the manner in which the male guards wore their hair did not detract from their work performance nor render them susceptible to manipulation by the prisoners.

Conclusion

Thus as a general rule, companies must be aware of the possibility that their dress code could be unfairly discriminatory and must ensure that what the dress code requires falls within the scope of an inherent requirement of the job and serves a bona fide, rational and commercial purpose.

This article was written by Alice Haddon, Candidate Attorney, Norton Rose Fulbright South Africa Inc

DOL issues new opinions on FMLA and FLSA

Key opinion letter allows FMLA leave for voluntary organ donation

Earlier this week, the U.S. Department of Labor (“DOL”) issued six advisory opinion letters on various Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”) issues.  From time to time, opinion letters such as these are issued to provide legal guidance to employers.

The DOL opinion letter likely to be of most interest to US companies is the one that addressed whether an employee in good health who voluntarily chooses to undergo organ donation surgery could use FMLA leave for post-operative care.  See FMLA2018-2-A. The DOL opined that this would qualify as a “serious health condition” under the FMLA if it involved either “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114 and 825.115.

Though the DOL opinion letter touched on medical certification as a “basic requirement” for FMLA leave, the DOL did not appear to find it significant that the employee was choosing to undergo the surgery voluntarily and “solely to improve someone else’s health.”  Instead, it focused on the medical treatment that would be involved in the organ donation surgery.

The other DOL opinion letters covered a variety of topics, and set forth the following opinions: Continue reading

New York State issues draft guidance on anti-sexual harassment policy and training requirements

In April 2018, we reported on New York State’s enactment of a new law aimed at preventing sexual harassment. We summarized this new law in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, and our Global Workplace Insider article, New York State’s new sexual harassment prevention laws will require action by all New York employers.  Under this law, New York State employers will need to comply with the following new requirements, among others:

  • By October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) is required to adopt an anti-sexual harassment policy that meets specified requirements; and
  • Before January 1, 2019, every New York State employer is required to conduct interactive sexual harassment prevention training that meets specified requirements. Thereafter, all new New York State employees must complete such training within 30 calendar days of beginning employment, and all New York State employees must receive such training at least once per year.

Recent New York State guidance on sexual harassment prevention measures

New York State has recently issued additional guidance on this new law, including a draft model anti-sexual harassment policy and complaint form, a draft training module, and draft frequently asked questions.  All of this guidance is in draft form, and the public can provide comments on the drafts on or before September 12, 2018.  Presumably, New York State will issue final guidance sometime after the end of the comment period and before the October 9, 2018 deadline for adopting a compliant anti-sexual harassment policy.  New York State employers who do not adopt the model documents issued by New York State can adopt individually tailored policies and training modules, as long as they meet the minimum requirements of the New York State law.  For this purpose, New York State issued documents summarizing the law’s minimum standards for sexual harassment prevention policies and training.  Note that there are certain provisions in the New York State draft model policy that seem to go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.  Additionally, it is unclear how far in advance of the October 9, 2018 deadline New York State will issue its final guidance and final model policy.  Accordingly, New York State employers will want to begin working now to get their policies into compliance by the October 9, 2018 deadline.  Continue reading

Can a dismissal letter be signed by an individual belonging to a holding entity?

Dismissal procedures are highly regulated in France including with respect to the identity of the individual who is entitled to conduct the procedure and sign the dismissal letter; such person must -by definition- be the “employer” .  However, some flexibility has been introduced over the years by French case law, and a recent decision of 13 June 2018 of the French Supreme Court is an illustration of such flexibility.

In this decision, the French Supreme Court held that a dismissal letter could be validly signed by the general manager of the holding entity, which is not the employing entity.

As explained above, the general principle is that  the dismissal procedure can only be carried out by, and the dismissal letter can only be signed by, the “employer”, who is the legal representative of the employing entity.  Alternatively, the “employer” can delegate its power to terminate the employment of the company’s staff to another individual.  However, French case law has held that such delegation of power may only be granted to an individual who actually belongs to the employing entity, and prohibits delegations or mandates granted to individuals external to the company.

Such prohibition may appear particularly strict in an economic context in which more and more entities are part of groups and in which there are daily intermingling with other entities of the group not only in the conduct of their activities but also regarding human resources management.

This is why, as an exception to the abovementioned rule, French case law had already admitted a few years ago that the Human Resources Manager recruited by the holding entity was validly entitled to effect the dismissal of the employees of the French subsidiary.  The rationale behind this decision was that the Human Resources Manager of the group was not external to the French entity given his/her duties were by essence extended to the management of the personnel of the subsidiaries of the holding entity.

Since that time, some other decisions have also authorized individuals who did not belong to the employing entity to dismiss the employees of the French subsidiary: this has been the case for example of the president of the holding entity and of the manager and the deputy general manager of the holding entity. Here also, it seems that the reasoning of the court was linked to the fact that the holding entity, through such individuals, was involved in the activity of the French subsidiary.

In the decision in question, the general manager of the French subsidiary was dismissed for gross misconduct and the dismissal letter was signed by the general manager of the parent entity.  The employee claimed that under such circumstances, his dismissal should be held unfair since the signatory was external to the employing entity and had not been granted any written delegation of power.  The Supreme Court rejected these arguments and held that the general manager of the parent, who had habitually supervised the employee’s activity, could as a result not be considered as being external to the French subsidiary. Moreover, the court added that in such case, the dismissal was valid even though no written delegation of power had been issued (a principle which had also been recalled in previous decisions).

In this context, although French case law has been widening the scope of the individuals who are entitled to handle a dismissal procedure within a group of companies,  we believe its terms are not sufficiently general at this stage to create a general principle in this respect.  We are therefore of the view that in practice it may still be preferable whenever practically achievable to have the dismissal procedure handled directly by the employing entity.

Update for New York City employers: New required anti-sexual harassment poster and information sheet published; compliance required beginning September 6, 2018

In May 2018, we reported on New York City’s recent enactment of a number of laws addressing sexual harassment in the workplace.  For further information, see our prior Global Workplace Insider post, New York City employers take note: New anti-sexual harassment laws enacted.  As we previously reported, effective September 6, 2018, all New York City employers must:

  • conspicuously display an anti-sexual harassment poster to be designed by the New York City Commission on Human Rights (in both English and Spanish); and
  • provide employees, at the time of hire, with an information sheet on sexual harassment.

The New York City Commission on Human Rights (the “Commission”) has recently published both the anti-sexual harassment poster and the information sheet on sexual harassment.

Anti-sexual harassment poster

The Commission’s recently published anti-sexual harassment poster may be found here.  At this time, only an English-language version of the poster has been published; the Commission’s website notes that a Spanish-language version of the poster is forthcoming.  Effective September 6, 2018, every New York City employer must conspicuously display the poster in employee breakrooms or other common areas where employees gather.  The size of the poster that is displayed must be at least 8½ x 14 inches.

New hire information sheet on sexual harassment

The Commission’s recently published information sheet for new hires may be found here (it is substantially the same as the anti-sexual harassment poster). Effective September 6, 2018, every New York City employer must distribute this information sheet to individual employees at the time of hire.  Employers may include this information sheet within an employee handbook, or distribute it as a stand-alone document.

Additional obligations forthcoming under both New York City and New York State law

As reported in our prior blog post, beginning April 1, 2019, New York City employers with 15 or more employees must provide anti-sexual harassment training to all of their New York City employees on an annual basis, and to all new hires within the first 90 days of their employment.  The Commission is expected to publish an online training module that can generally be used by employers to satisfy this training requirement, but this module has not yet been published.  Note that this New York City training requirement is in addition to the separate New York State sexual harassment training requirement, as reported in our prior legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws.  New York State employers should also note the upcoming October 9, 2018 deadline for updated sexual harassment policies under the New York State anti-sexual harassment law.  New York State is expected to issue a model policy that employers can adapt to meet these requirements, but this model policy has not yet been published.

We will continue to monitor developments under both the New York City and New York State anti-sexual harassment laws and report on relevant guidance as it is published.

For more information

Please contact us with any questions. We would be happy to assist your company with compliance with these new requirements.

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