Norton Rose Fulbright’s online guide to global employment law is now available

More and more organisations are growing their global footprint and need to move their people around the world. In this global environment, it is essential to know, understand and comply with employment and labour laws in place across all of the jurisdictions in which organisations engage people. This will help to protect business from unnecessary risk, whether legal, financial or reputational.

We have launched a new interactive online version of our Global employment law guide first published in 2015.

Featuring 28 jurisdictions, our interactive guide helps clients navigate the often disparate and diverse national employment and labour laws, in particular those which address employment-specific issues that receive significant attention from senior management and boards who operate, or intend to operate, in multiple jurisdictions.

The new interactive guide enables users to:

  • navigate a map of the globe to click on the jurisdiction you wish to read about;
  • create and customise your own comparative reports; and
  • opt to receive email alerts when the laws change in the jurisdictions of your choice.

Topics include:

  • Statutory obligations
  • Employment contracts
  • Termination of employment
  • Privacy
  • Discrimination, bullying and harassment
  • Workplace health and safety
  • Industrial relations / collective labour law
  • Transfer of business Foreign employees and immigration

The guide is designed to provide our clients with practical overview of employment and industrial legislation to assist you to manage human resource risk and compliance.

If you are interested in accessing the Global employment law guide, please register via the link provided above. Registration indicates acceptance of the terms and conditions which include important information about how this new product will be delivered.

If you would like to find out more about our support in this area, please contact your usual Norton Rose Fulbright advisor or one of our Employment and Labour team members here.

Ontario Employment Standards Poster Now Available in 12 Languages

Effective January 1, 2018, employers covered by the Ontario  Employment Standards Act, 2000 (ESA)  have been required to post version 7.0 of the Ministry of Labour poster “Fair at Work Ontario – What You Need to Know” in the workplace where it is likely to come to the attention of employees.  Employers must also provide all employees with a copy of the poster within 30 days of their hire date.

The poster must be displayed in English.  Further, if the majority language of a workplace is a language other than English, and the Ministry has published a version of the poster in that language, the employer must post a copy of the translation next to the English version of the poster.  Employees must also be provided with available translations of the poster, upon request.

Version 7.0 of the poster is now available in 12 languages, and may be downloaded free of charge from the following hyperlinks: English,  French,  Arabic,  Chinese (Simplified),  Chinese (Traditional),  Hindi,  Portuguese,  Punjabi,  Spanish,  Tagalog,  Thai  and  Urdu.

Failure to post or distribute copies of the poster to employees would be in violation of the ESA and could expose employers to enforcement action.

Absence of work-wages bargain crucial for Fair Work Commission in concluding that an Uber driver was not an employee

The Fair Work Commission (FWC) recently handed down a decision[1] which concluded that an Uber driver was not an employee for the purposes of the Fair Work Act 2009 (Cth) (FW Act), but an independent contractor, meaning that his unfair dismissal application was dismissed.

The decision, the first of its kind in Australia, only increases the tension between the rise of the gig economy and the traditional indicia courts use to determine the presence of an employment relationship.

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Banking on your talent: Financial Sector Charter and transformation in the workplace

There have been recent discussions around the lack of transformation in the financial services industry in South Africa.  This has led to discussions of potentially reviewing and codifying the Financial Sector Charter (FSC) in an effort to fast-track transformation in the workplace and ownership in the financial services sector.

The Financial Sector Charter is a voluntary agreement by all National Economic Development and Labour Council members (NEDLAC), a multilateral social dialogue forum on social, economic and labour policy.  All banks in the country, local and international are required to adhere to the NEDLAC charter.

The FSC commits its participants to promote a “transformed, vibrant, and globally competitive financial sector that reflects the demographics of South Africa, and contributes to the establishment of an equitable society by effectively providing accessible financial services to black people and by directing investment into targeted sectors of the economy.”

The employment equity element which is set out in the Management Control Code 200 of the revised Codes of Good Practice of October 2013, contributes 15 points to the overall total of 105 points.  The employer receives points for meeting the target for the participation for black people (with additional points for meeting the target for participation by black women) at board, executive management, senior management, middle management and junior management levels and for meeting the target for black disabled people.

Recent parliamentary discussions that took place towards the end of 2017, when submissions were made by major banks and various associations within the country’s financial institutions, brought the spotlight on banks which have been under attack for alleged slow transformation.  Banks are insistent that they are still committed to achieving their racial transformation targets.

A first report compiled through various public hearings held throughout the course of 2017 has proposed that targets in the Financial Services Charter be made compulsory and possibly get incorporated into regulations.  It further proposes that financial services corporations that fail to meet the target be penalised for their failure to do so and that achieving these targets be made a conditions for the licensing of financial institutions. A policy on this fine system will be presented by June 2018.

Conclusion

Discussions around this developing issue are still taking place and nothing has been codified.  Therefore banks, as employers, would do well to aim at getting a head-start by adopting a “robust” approach and set equity goals that are aimed at achieving equity representation in senior and executive management and ultimately accelerating employment equity.

The benefit that comes with this is increased performance and attraction of foreign investment and clientele.

This article was written by Mohammed Chavoos, Director and Peal Mathonsi, Associate Designate, Norton Rose Fulbright South Africa Inc

The never-ending search for fairness in a termination clause

Over the course of this past year there have been several important decisions dealing with the enforceability of termination clauses in employment agreements, and how a court is to interpret a clause to determine the employer’s obligations to a departing employee.  The importance of these decisions can be seen by contrasting the financial consequences that follow when an employer makes the decision to terminate an individual’s employment.

For instance, where a termination clause is enforceable and successfully limits an employee’s entitlements upon termination to the statutory minimums prescribed by the applicable employment standards legislation, an employer’s financial obligations associated with the amount of notice provided to the employee can be measured in terms of weeks.  On the other hand, where a termination clause is either unenforceable or fails to limit the employer’s obligations, the length of the employee’s notice entitlement changes from weeks into months.  To further compound the issue for Ontario employers, if the period of notice includes a date when the employee becomes entitled to additional financial compensation (such as a bonus), then that payment can become part of the financial obligations the employer would owe to the employee.  This is because an employee is entitled to receive all compensation he or she would have otherwise received had the employee been permitted to work during the notice period.

The risk of additional costs can be avoided by including a carefully crafted termination clause in all employment agreements that can satisfy a court’s requirements for enforceability. Although this may sound easy, historically it has proven to be a challenge for employers.

First, for the termination clause to be enforceable it must clearly comply with the prescribed statutory minimum entitlements for employees.  In Ontario, that means the termination clause cannot attempt to contract below the minimum entitlements found in the Employment Standards Act, 2000 (”ESA”).  Second, the termination clause must rebut the presumption that the employee is entitled to receive common law reasonable notice by specifying some other period of notice.  That is, the language of the clause must provide the reader with a clear understanding of what the employee is entitled to receive upon the termination of his or her employment without cause by the employer.

The Ontario Court of Appeal recently addressed these issues in Wood v. Fred Deeley Imports Ltd.  In Wood, the Court reviewed the policy reasons informing its approach and further provided welcome guidance on when a termination clause in an employment agreement will be found to be illegal.

In that case, ex-employee Wood successfully argued that the termination clause in her employment agreement was illegal because it failed to provide for the continuation of benefits and severance pay in contravention of the prescribed minimums under the Ontario ESA.  The Court held that where an employment agreement is ambiguous, the ambiguity is to be resolved in favour of the employee due to the imbalance in bargaining power between employers and employees, and the fact that employees are likely unfamiliar with their statutory protections.  The Court also endorsed the propositions that an employee must know what his or her entitlements will be at the end of employment from the very beginning of the employment relationship, and that an employer’s conduct upon terminating employment without cause cannot be used as a tool to assist a trier of fact to interpret an ambiguous termination clause.

Therefore, for a termination clause to be effective, it must be objectively understood by both parties at the start of the employment relationship that the language is restricting the employee’s entitlements and that it does so in accordance with the prescribed ESA minimums.  In the past, to protect against a court ruling a termination clause was illegal, employers included a clause in the employment agreement to sever off any offending part of the termination provision, while allowing the employer to rely on the remaining language to limit the employee’s entitlements.

However, this tool reached a practical end in Ontario when the Court of Appeal released its decision in North v. Metaswitch Networks CorporationThe Court stated that it would be an error in law to simply void the offending portion and leave the rest of the termination clause to be enforced.  The operation of the rule endorsed in the Wood decision is that an entire clause would be void if even part of it was illegal.  Therefore, there would be nothing left to save because the entire termination clause will be considered void.

The practical result of these above decisions is to re-enforce a high standard on employers to draft termination provisions that are clear in their entirety and that there is only one chance to do so.  An important question remains: What does a termination provision have to include in order to clearly define an employee’s notice entitlement?  The answer came in the most recent Ontario Court of Appeal decision dealing with termination clauses.

In Nemeth v. Hatch Ltd., the Court ruled that no magic words are required to express the parties’ intention to agree to a notice period that is less than the employee’s common law entitlement.  Instead, a court must read the content of the language used in the agreement as a whole and determine if it has clearly and unambiguously demonstrated an intention of the parties to contract out of the employee’s common law notice entitlement.  Neither is it necessary for an employer to have language delineating the employee’s entitlement to statutory severance pay or benefits during the notice period.

The Court agreed that the analysis on enforceability should focus on the language that is included in the termination clause, rather than focusing on what is missing.  Therefore, simply remaining silent on certain aspects of the employee’s entitlements during the period of notice will not invite the presumption that the termination clause is unenforceable.  Instead the analysis will focus on whether the employer has fairly and clearly drawn a circle around its obligations to a departing employee, and whether that circle attempts to exclude an employment standard which the employee is statutorily entitled to.

Recently, Norton Rose Fulbright Canada’s Daphne Fedoruk successfully argued that a termination clause found in an employment agreement did just that and dismissed an employee’s claim for wrongful dismissal and punitive damages.  In Lopez v. EMD Inc. (Canada), the plaintiff was dismissed from his employment and provided with his minimum entitlements under the ESA in accordance with the terms of the termination clause.  Part of that clause stated:

[The Company] may terminate your employment without cause upon giving you the applicable statutory notice, termination pay and/or severance pay to which you may be entitled.

You agree that [the Company] may deduct from any payment of salary instead of notice under this provision your benefit plan contributions that were regularly made by you during the term of this Agreement in accordance with the terms of all benefit plans to be maintained under this provision for the minimum period prescribed by law.

The plaintiff argued that the clause was ambiguous because the words “applicable statutory notice” did not clearly outline what was intended to be included and, therefore, could be interpreted as an attempt to contract out of the prescribed ESA minimum standards.  The plaintiff also argued that the language was not sufficiently clear that his entitlements were limited to something less than the common law, and therefore did not adequately rebut the presumption to entitlement to common law reasonable notice.

The Court rejected both of these arguments, finding that reading the termination clause as a whole clearly specified that he would only receive his minimum statutory entitlements and that the termination clause did not attempt to exclude benefit continuation during the notice period.  The Court’s analysis focused on the words that were included in the language of the termination clause and not what was missing.  Reading the paragraphs together as a whole, the Court held the language clearly and unambiguously demonstrated the objective intention of the parties to limit the plaintiff’s entitlement to the minimums prescribed under the ESA and that the language did not exclude any employment standard.  Therefore, the termination clause was valid and enforceable.

Given the above, it is helpful for employers to know that termination clauses in their employment agreements will not be unfairly voided simply for missing specific language.  However, it remains important for employers to carefully review the terms and conditions outlined in a termination clause to ensure it adequately defines the employee’s agreed upon notice period and entitlements upon termination without cause.

Should you have any questions on the enforceability of your employment agreements, please feel free to contact your usual Norton Rose Fulbright lawyer.

Please note that this post has been modified since it’s original publication.

Ontario Bill 148 reform and public holidays: a reminder

Since Ontario Family Day is coming on February 19, please take another look at our posts explaining how Bill 148 amended the public holiday provisions in the Ontario Employment Standards Act. As you may recall, there is a new formula for calculating public holiday pay, plus additional employer obligations when an employee works on a public holiday.

1. Posted on January 6: Ontario Bill 148 amendments and public holidays: what has changed

2. Posted on January 8: Ontario Bill 148 amendments and public holidays: what else has changed

The UK Government’s Good Work Plan

(Note: Since drafting this post, the Government has published the consultation documents so a further update will follow.)

 

The UK Government has today (7 February) announced its Good Work Plan (the Plan) in response to the Taylor review of Modern Working Practices published last year which set out a number of recommendations, in particular with regard to the so-called “gig economy”. It provides a brief outline of what is proposed but, so far, without the detail needed to clarify its precise plans.

The Government promises to “act” (largely dependent on consultation) on almost all of the Taylor review recommendations and in some respects plans to “go further than the review’s proposals”.

Proposed consultations 

The Government promises the launch of four consultations as part of the Plan on the following:

  • employment status (no detail on this is given yet but it is to examine options (including legislation) to make it easier to determine employment status)
  • enforcement of employment rights recommendations (for example, by introducing a new naming and shaming scheme for employers who fail to pay tribunal awards and increasing financial penalties for employers who show “malice, spite or gross oversight” – and also for repeat offenders)
  • agency worker recommendations (such as providing agency workers with a clear breakdown of who pays them and any costs or charges deducted from their wages)
  • proposed measures to increase transparency in the UK labour market (such as making sure new and expectant mothers are aware of their rights; launching a campaign to encourage more parents to take up shared parental leave; and launching a taskforce to promote awareness and take-up of the right to request flexible working).

In any event, no changes are guaranteed. The Government states that it “will consider the impact of these reforms on business and other groups before implementing changes”.

Other proposals 

Other currently rather vague proposals are set out, such as:

  • introducing a new right for all workers, including zero hours and agency workers, “to request a more stable contract”. It is by no means clear what is meant by this.
  • “asking” the Low Pay Commission to “consider” the impact of higher minimum wage rates for zero hours workers
  • “enforcing vulnerable workers’ holiday and sick pay for the first time”

Holiday and sick pay entitlements 

The Government also states that it will produce “a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers including casual and zero-hour workers”.

Contrary to today’s headlines in the UK press, this may mean purely a clarification of existing holiday and sick pay rights rather than an extension of these rights to all workers. However no further detail is yet provided.

Employment status and tax 

Currently, for tax purposes, there are only two types of work status: employed or self-employed. This means that a worker for employment law purposes who is not an employee is treated as self-employed for tax purposes. 

One of the Taylor review recommendations is to align employment status with tax status, so that, for example, if someone is treated as employed for tax purposes then they should also be treated as an employee for employment status purposes. The review also recommends that the tax regime which currently applies to employees should apply to workers also.

It is made very clear in today’s announcement that changes to the rates of tax or National Insurance Contributions for either employees or the self-employed will not form part of the consultation on employment status. However, details of what is proposed in this area remain to be seen when the consultation is published.

 

 

 

Australian Parliament considering new “whistleblowing” laws

In late December 2017, the Australian Government tabled a Bill aimed at improving protection for whistleblowers in the corporate, financial, credit and tax sectors.

If passed, the new legislation will result in a range of changes taking effect from 1 July 2018.

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Legislative changes under Ontario Bill 177

The effect of the Stronger, Fairer Ontario Act (Budget Measures), 2017 (“Bill 177”), which received royal assent on December 14, 2017, is far reaching as it introduces changes to a number of statutes. The Occupational Health and Safety Act (“OHSA”), the Broader Public Sector Executive Compensation Act (“BPSECA”), the Pension Benefits Act (“PBA”) and the Workplace Safety and Insurance Act, 1997 (“WSIA”) are all amended as a result of Bill 177. This post outlines some of the changes to the affected statutes.

Amendments to the OHSA

One key amendment is the increased limit of fines under section 66 of the OHSA. For individuals and corporations, fines have increased from $25,000 to $100,000 and $500,000 to $1,500,000, respectively. The limitation period, in which charges may be filed under section 69 of the OHSA, has been amended to the later of either one year of the act of default or one year from when the inspector learns of the alleged offence.

Amendments to the BPSECA

On December 14, 2017, amendments to the BPSECA came into effect. One amendment includes a change to the definition of “Minister” under the BPSECA. The definition has been altered to provide Ministers of Ministries that are governing a broader public sector organization with the ability to act under the BPSECA. Further, compensation frameworks may now grant a Minister the power to make specific decisions on a case-dependent basis.

Amendments to the PBA

The Superintendent is now required to establish, maintain and operate an electronic registry relating to beneficiaries who are missing. With regard to the electronic registry, an administrator will have to inform the Superintendent, in the manner approved by the Superintendent, within a reasonable time if a beneficiary is missing or if a missing beneficiary has been found. After receiving such notice, the Superintendent will be required to update the relevant information in the registry if the Superintendent is satisfied that there are reasonable and probable grounds to believe that the beneficiary is missing. Another responsibility of the Superintendent relates to when a party makes a request for information in the registry. In such cases, if the Superintendent is satisfied that the party seeking the information is a beneficiary recorded in the registry or an authorized agent of a beneficiary, the Superintendent shall give that person the information in the registry that pertains to the beneficiary.

Amendments to the WSIA

Benefits for mental stress are now available under the WSIA. Bill 177 implemented transitional rules, which became effective on January 1, 2018. These transitional rules involve the determination of mental stress claims. First, if a worker’s mental stress occurs on or after April 29, 2014 and the worker has not filed a claim in respect of entitlement to benefit for mental stress before January 1, 2018, then these claims may be filed any time before July 1, 2018. Second, if a claim regarding mental stress was filed within a reasonable time and as on January 1, 2018 was pending before the Workplace Safety and Insurance Board (“Board”), then the new mental stress provisions will be used in adjudication. Third, if a worker or a survivor has filed a claim with the Board for entitlement to benefits for mental stress within the time limits set out and the claim is pending before the Appeals Tribunal on January 1, 2018, the Appeals Tribunal shall refer the claim back to the Board and the Board shall decide the claim in accordance with the WSIA as it reads at the time the Board makes its decision, regardless of the date on which the worker’s mental stress occurred.

Written in collaboration with Monica Wong, articling student.

Harassment and violence in the workplace : changes to be expected for federally regulated employers

After a few politicians at the federal and provincial levels recently stepped down because of sexual misconduct allegations, lawmakers debated Bill C-65 in the House of Commons this week.

Tabled in November 2017, Bill C-65 aims to amend “the Canada Labour Code (CLC) to strengthen the existing framework for preventing harassment and violence, including sexual harassment and sexual violence, in the workplace”.

Minister of Employment, Workforce Development and Labour Patty Hajdu’s approach is focused on occupational health and safety, with amendments to Part II of the CLC to bring psychological injuries or illnesses in the realm of workplace accidents to be covered by the legislation.

With this in place, Bill C-65 tasks federally regulated employers with taking affirmative action to prevent and protect employees against harassment and violence in the workplace.

Additionnally, employers will have to investigate, record and report all accidents resulting from harassment or violence in the workplace. Compliance with future regulation on the subject will also be mandatory.

Division XV.1 of the CLC – contained in Part III « Standard hours, wages, vacations and holidays » – already discussed sexual harassment in the workplace but it was part of the Liberal agenda to propose a more robust approach on this subject.

In light of recent events, it is safe to assume that Bill C-65 will become effective sooner rather than later. Federally regulated employers should get ready to act accordingly.

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