When is disclosure of conciliation proceedings allowed?

Shortly after the dawn of our democracy, our labour law regime was completely overhauled with the enactment of the Labour Relations Act 66 of 1995 (LRA). The vision for this legislation was to provide simple procedures for the resolution of labour disputes. This was not simply for expediency; it was in the context of empowering those only recently franchised to have better access to justice. The concept was revolutionary in our formalistic legal system: there would be an emphasis on dispute resolution mechanisms such as conciliation, there would be no automatic right to legal representation and arbitrators could adopt an inquisitorial approach in that they are empowered to embark on fact finding missions.

Litigating in the CCMA, especially as an employer, is usually anything but a straightforward process that parties can easily navigate without the assistance of lawyers. The recent Constitutional Court judgment of September & Others v CMI Business Enterprise CC [2018] confirmed that not everything discussed during conciliation is confidential and without prejudice and aspects may be divulged in subsequent proceedings. This illustrates the point that the realm of labour law is continually evolving to give substantive effect to the purpose of the LRA in the process of disputes where technicalities can trip up those who are not legally represented.

The purpose of conciliation is to provide an informal forum (free from attorneys) for the purpose of dispute resolution (as opposed to combative litigation). Parties are encouraged to enter into discussion in an attempt to resolve their dispute on the assurance that the proceedings are private, confidential and on a without prejudice basis meaning that the content cannot be referred to by either party in later proceedings. During these discussions, parties often canvass the merits of the dispute and potential arguments to persuade the other to settle.

The Constitutional Court held that discussions at conciliation are privileged from disclosure but this does not mean that everything discussed is inadmissible in further proceedings. The Court, further, held that evidence as to the nature of the dispute is not privileged as it does not relate to the substance of the dispute – it is merely descriptive. Therefore in determining the nature of the dispute, the Constitutional Court relied on representations made during conciliation proceedings in its decision.

This judgment may have the effect of causing parties to be reluctant to speak freely in conciliation.    A very real concern is that this approach will inhibit settlement discussions. This is particularly concerning circumstances where legal representation is not permitted during conciliation meetings, and unrepresented parties may be at risk of prejudicing their case at conciliation.

On the other hand, it is often not quite clear what the nature of an employee’s dispute is.  How the dispute is defined impacts on whether legal representation may be allowed in future proceedings and will also determine whether the CCMA or the Labour Court will have jurisdiction to hear the matter.  Employees also regularly change the nature of their dispute during the subsequent arbitration hearing or when they submit a claim in the Labour Court.  When this happens, employers will be able to refer to the employee’s submissions made regarding the nature of the dispute during the earlier conciliation meeting.

In light of this judgment, it is important to adequately prepare for conciliation meetings so that the representatives are comfortable with what they are allowed to divulge or not.

Finally, this is another reminder that the rules and processes of the CCMA are applied in the context of the purpose of the LRA and not to frustrate dispute resolution.

This article was written by Raoul Kissun, Senior Associate, Norton Rose Fulbright South Africa Inc

Italian labour court hands down landmark decision on Foodora case with potentially far-reaching implications for any company active in Italy’s growing Gig economy

On May 7, 2018 the Labour Court of Turin handed down a landmark decision in a case brought by delivery bike drivers or couriers (“riders”) working for Foodora, an online food delivery company that offers meal delivery in 10 countries worldwide, including Italy.

Amongst other things, the riders, each with a freelance work contract with Foodora, sought a relabeling of their work contracts from the “freelance” category to the “subordinate employment agreement” category. In effect, the relabeling of the work contract requested would give rise to an obligation on the part of Foodora to pay the riders an increased wage as well as to pay certain social security contributions not previously paid; in addition, the riders would gain certain protections provided by Italian law relating to the dismissal of employees (compensation and/or reinstatement in case of unlawful dismissal).

There is an abundance of case law relating to the differences between a freelance employment relationship and a subordinate employment relationship, both of which generally relate to the employer’s right to give orders and directives to the worker. Following this case law, and the fact that the riders in this case were completely free to accept or refuse any meal delivery requests from Foodora, the Court decided that the relationship between the riders and Foodora fits within the category of freelance, not subordinate, employment.

The Court’s decision may be appealed on the basis of certain provisions of Italy’s labor law reform, which was passed in 2015 (the “Jobs Act”). One of the objectives of the Jobs Act was to make subordinate employment more attractive to companies/employers, by providing them with economic incentives to offer subordinate contracts, and also by weakening some of the protections previously provided to employees, for example, in the case of unfair dismissal. At the same time, the Jobs Act aimed to reduce as much as possible the “grey areas” pertaining to freelance workers, in particular for those freelance workers who are subject to the control of the employer. In this respect, the Jobs Act introduced a specific rule which provides that if the employer has the power to determine the place and the time in which the freelance worker has to carry out his or her activities, then all the aspects of the subordinate employment relationship shall be applicable to that worker. As to this point, the Court expressly stated that since Foodora did not have the power to unilaterally determine the place and the time of the riders’ activities, the riders could not be considered subordinate employees.

In the event that the Foodora case is appealed, it is likely that this will lead to a discussion as to the fine line between the right of the employer to dictate to the worker the place and time for the requested activity and merely coordinating the activity that it requests the worker to perform in a way that is less invasive.

The Court’s decision and the decision of any appellate court could have far reaching implications for all companies active in Italy’s growing Gig economy.

 

New York City employers take note: New anti-sexual harassment laws enacted

On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace.  The laws are summarized below.  New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them.  New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter).  Such training is now required under both New York State and New York City law.  New York State’s law, which was also recently enacted, will become effective first.  For a brief discussion of the recent New York State legislation, please see our prior blog post, New York State’s new sexual harassment prevention laws will require action by all New York employers.

Anti-Sexual Harassment Training

Beginning April 1, 2019, New York City employers with 15 or more employees (which includes interns for purposes of this new law) must provide anti-sexual harassment training to all of their New York City employees on an annual basis.  The training must also be provided to new hires (who will work more than 80 hours per year) during the first 90 days of their employment.  The training must address the following items (at a minimum):

  1. an explanation that sexual harassment is a form of unlawful discrimination under New York City, New York State, and federal law;
  2. a description, using examples, of what constitutes sexual harassment;
  3. a description of the employer’s internal procedures for reporting claims of sexual harassment;
  4. a description of the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United State Equal Employment Opportunity Commission for reporting claims of sexual harassment, including contact information for each agency;
  5. a statement that retaliation under the New York City human rights law is prohibited, and examples of prohibited retaliation;
  6. information regarding bystander intervention, including resources that explain how to engage in bystander intervention; and
  7. a description of the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees can take to appropriately address complaints of sexual harassment.

Also, the training must be “interactive.”  However, the new law is clear that the training need not be in-person or live in order to be considered interactive.  The New York City Commission on Human Rights will be developing an on-line training module that can be used by employers to satisfy this training requirement, as long as employers supplement the module with a description of their internal complaint procedures.

The law requires employers to maintain records of all trainings provided, including signed employee acknowledgements, for at least three years.

New York City employers should be aware that this New York City training requirement is in addition to, and not in lieu of, the recently enacted New York State sexual harassment training requirement.  New York City employers should ensure that their training modules satisfy both state and city requirements, to the extent applicable.  To read a copy of our recent client alert summarizing the New York State requirement, please see our prior legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws.

Information sheet for employees

Effective September 6, 2018, all New York City employers must provide employees at the time of hire with an information sheet on sexual harassment.  This information sheet will be developed by the New York City Commission on Human Rights and may be included in the employer’s employee handbook.

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Bill 6 looks to broaden leave entitlements in British Columbia

On April 9, 2018, BC’s Minister of Labour introduced Bill 6, the Employment Standards Amendment Act, to the BC Legislature.  Bill 6 includes proposed amendments to the Employment Standards Act (“ESA”) to bring certain types of leave into line with the Federal government’s recent changes to the Employment Insurance Act so that employees are entitled to job protection under the ESA for the same amount of time they are entitled to employment insurance benefits.  In addition, Bill 6 also creates two new types of job-protected leave for death or crime-related disappearance of a child.

The changes proposed by Bill 6 can be summarized as follows:

Leave Previous Entitlement Amended Entitlement
Maternity May begin at any time 11 weeks before due date and the actual birth date and last up to 17 weeks May begin 13 weeks before due date and last up to 17 weeks
Parental Up to 35 weeks if pregnancy leave taken

If pregnancy leave not taken, up to 37 weeks beginning after birth and within 52 weeks of birth

For adopting parents, up to 37 weeks that must begin within 52 weeks of placement

Combined pregnancy and parental leave limited to 52 weeks

Up to 61 weeks if pregnancy leave taken

If pregnancy leave not taken, up to 62 weeks, which must begin within 78 weeks of birth

For adopting parents, up to 62 weeks that  must begin within 78 weeks of placement

Combined pregnancy and parental leave limited to 78 weeks (18 months)

Compassionate care Up to 8 weeks, must be taken within a 26 week (or prescribed) period Up to 27 weeks that must be taken within a 52 week period

 

Bill 6 also entitles a parent whose child under 19 years of age goes missing due to a crime to 52 weeks of unpaid leave.  If the child is found alive during the leave, the leave continues for a maximum of 14 days.  If the child is found deceased, this leave ends immediately.  Bill 6 also separately entitles a parent whose child under 19 years of age dies to 104 weeks of unpaid leave immediately after the death under any circumstances or after the child is found deceased following a disappearance.  This leave is in addition to three days of bereavement leave currently available.  Both of these leaves must be taken in a single continuous period, or on an intermittent basis with the employer’s consent.

Bill 6 also includes transitional provisions that dictate whether the previous or amended entitlements apply in each circumstance.  For maternity leave, subject to the specified notice requirements, the effect of the transition rules is that employees who are already on leave, who have previously provided notice to go on leave, and those who provide notice in the future will all be entitled to the increased leave.  For parental leave, the entitlement to the increased leave depends on whether the employee’s child was born or placed with the adopting employee on or after December 3, 2017.  Finally, for compassionate care leave, the increased entitlement is available not only to those who have given notice of the leave or who are already on leave but also to those whose leave commenced within 52 weeks prior to the date the amendments come into effect.

As a result, employers may be required to extend the backfill measures that had previously been arranged for the original length of a leave.  The amendments do not alleviate any obligations that were previously imposed on employers concerning, for example, payments to pension, medical or other benefits plans that must be made on behalf of employees during statutory leaves.  Service during leaves will continue to be recognized for all purposes such as vacation entitlement.

Bill 6 came into force on the date of Royal Assent, May 17. Other amendments to the Employment Standards Act are expected in the future as well as amendments to the Labour Relations Code and Occupational Health & Safety related legislation.

Written with the assistance of Dallan Poulin, articling student.

Singapore: Legal issues commonly faced by freelancers and self-employed individuals

An estimated 8 to 10% of Singapore’s existing workforce comprise freelancers and self-employed individuals.[1]  This percentage is likely to increase with the expansion of the gig and on-demand economy. In recent months, there has been increasing public concern as to the ‘employment’ rights and legal status of these freelancers and self-employed individuals. Are they employees or independent contractors, and why does it matter?

As a matter of Singapore law, there is no single conclusive test which determines whether a person is engaged as an employee or independent contractor. An assessment of the entire context and working relationship between the parties will be necessary, and the factors which are relevant in the analysis include: degree of control exercised over the individual, method and frequency of payment for work done, period of work, provision of tools of the trade etc. The label used by the parties (or one party) in any written document to describe their legal relationship will be useful but is in no way determinative of the matter.

Unlike employees, freelancers and self-employed individuals do not presently enjoy any statutory employment benefits. They fall completely outside the ambit of the Singapore Employment Act, and cannot therefore avail themselves of the employment protections set out therein. These employment protections relate to, for example, minimum paid annual and sick leave and mandatory payments for overtime work. All of the benefits enjoyed by a freelancer or self-employed individual are found only in the relevant contract for services.

If there has been a breach by the counterparty of the provisions in a contract for services (for example, failure to pay an agreed sum in consideration for the provision of those services), or a need to enforce those provisions, freelancers and self-employed individuals do not generally have recourse to the more cost-effective, expedient avenues for resolution of these issues and which are only open to employees. These avenues include the recently constituted Employment Claims Tribunal (ECT) and Tripartite Alliance for Dispute Management (TADM), both of which principally manage issues arising between employers and employees. Freelancers and self-employed individuals may have little option but to seek redress in the Singapore courts, often a costly and time-consuming process.

From the employer’s perspective, the correct characterisation is important. If it was later found that the individuals were providing services in their capacity of employees instead of independent contractors, the employer may have acted in breach of its obligations under various employment-related legislation if the employer had not given those individuals the statutory benefits which they would otherwise have enjoyed had they been considered as employees from the start of the relationship. The clearest and most common example of this is non-payment of CPF (which is compulsory only for employees, not freelancers or independent contractors).

These issues have not gone unnoticed by the Singapore Government, which commissioned a Tripartite Workgroup in 2017 to identify common challenges faced by freelancers and self-employed individuals and develop recommendations to address these challenges. The Tripartite Workgroup comprised officials from the Ministry of Manpower (MOM), National Trades Union Congress (NTUC), and the Singapore National Employers Federation (SNEF), and it engaged and consulted a host of stakeholders including freelancing associations and communities, businesses, and other Government agencies.

In February 2018, the Tripartite Workgroup issued to the Singapore Government its findings and recommendations by way of a report.

The Workgroup identified four common challenges faced by self-employed individuals: (i) payment-related disputes, (ii) loss of income due to prolonged illness or injury, (iii) lack of CPF savings for healthcare and retirement, and (iv) lack of occupation-specific competency frameworks. Some of the recommendations made by the Workgroup include:

  1. Developing a “Tripartite standard” for the engagement of freelancers’ services. Such a standard would include rules such as the requirement to provide written contracts covering key terms of engagement e.g. payment schedules, quantum of payments, parties’ obligations etc.
  2. A specialized health insurance product tailored specifically to meet the needs and circumstances of self-employed individuals.
  3. A “contribute-as-you-earn” model whereby a Medisave contribution is required as and when a service fee is earned by the self-employed individual.

The full report issued by the Tripartite Workgroup may accessed here.

 

[1] (https://www.cipd.asia/news/hr-news/gig-economy-workers-singapore)

EAT holds that paying enhanced maternity pay, but only statutory shared parental pay, is capable of amounting to indirect sex discrimination

In the UK, only female employees are eligible for statutory maternity leave. They are also eligible for statutory maternity pay at a fixed rate during such leave subject to certain conditions – and it is common for employers to pay enhanced maternity pay during periods of maternity leave.

Whilst many employers do not pay enhanced paternity pay to those on paternity leave, it has long been accepted that paying enhanced maternity pay is defensible under the provisions of the Equality Act which state that, when determining whether a man has been discriminated against on grounds of his gender, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

Shared parental leave and pay 

In 2015, the new scheme of shared parental leave and pay was introduced for eligible working parents. It allows the mother to choose to end her maternity leave at any time after the compulsory maternity leave period so that the untaken balance of her statutory maternity leave and pay may be taken as shared parental leave and pay by her and the father/her partner.

Government guidance has been that if employers enhance shared parental pay for female employees, they must also do so for male employees to avoid discrimination. But it is not discriminatory to pay enhanced maternity pay but not enhanced shared parental pay.

Employment tribunal judgments

As we reported in a recent post, nevertheless, in two recent cases, male employees have sought to argue that it is discriminatory for employers to pay enhanced maternity pay to their female employees on maternity leave, but to pay only statutory pay to them whilst on shared parental leave.

It was held by the employment tribunal in the first case that this practice was not discriminatory because the correct comparator for the male employee was not a woman on maternity leave but a woman who had not given birth (the same-sex partner of the mother) who was on shared parental leave. The correct comparator would also have received statutory pay only and so no sex discrimination occurred.

However, the employment tribunal in the second case held the opposite. The comparator argument was not addressed. Instead the tribunal concentrated on the argument that the payment of enhanced maternity pay could not be defended as “special treatment afforded to a woman in connection with pregnancy or childbirth” because under the new shared parental leave scheme, only the two-four week period of compulsory maternity leave (CML) is kept exclusively for the mother whilst the rest may be shared – therefore the extra pay for mothers after CML was not special treatment in connection with pregnancy or childbirth but with caring for a newborn which either parent could do.

Both decisions were appealed to the Employment Appeal tribunal (EAT) which heard the cases in December 2017 and January 2018. Judgment was handed down in one appeal on 11 April 2018. We reported on this decision in our last post. Now the EAT has handed down its judgment in the second appeal.

Judgments of the EAT 

As previously reported, the EAT held in April that that it is not directly discriminatory to pay enhanced maternity pay to a woman on maternity leave but only statutory shared parental pay to a man on shared parental leave.

The tribunal had been wrong to conclude that following the period of CML, the purpose of maternity leave is childcare. The purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth and the level of pay is inextricably linked to the purpose of the leave. The EAT held that the father could not compare himself to a woman on maternity leave.

The purpose of shared parental leave is different from that of maternity leave/pay. It is for the purposes of childcare and is given on the same terms for both men and women. There is therefore no direct discrimination when an enhanced level of maternity pay is given to mothers on maternity leave but only the statutory rate to either sex on shared parental leave.

The EAT held that, contrary to the argument raised in the employment tribunal, payment of maternity pay at a higher rate did fall under the provisions of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.

However, the case concerned a claim of direct sex discrimination only.

The second appeal was against the finding at tribunal level that there was no indirect sex discrimination either. The EAT has now allowed the appeal on this point.

It concluded that the policy of paying only the statutory rate to those on shared parental leave put fathers at a particular disadvantage when compared with mothers because they have no choice but to take shared parental leave (not being entitled to maternity leave), and the lower rate of pay deters them from taking that leave.

So whilst it is now clear that paying enhanced maternity pay to a woman on maternity leave but only statutory pay to a man on shared parental leave does not amount to direct sex discrimination, the EAT has concluded that it may amount to indirect sex discrimination (which unlike direct sex discrimination is capable of justification), and has sent the case back to the employment tribunal to decide whether there was sex discrimination on the facts of the case.

Employers who enhance maternity pay but not shared parental pay will not be able to rest easy until the outcome of the next hearing.

 

 

Visual contracts: Re-imagining the employment contract

We had the pleasure of assisting global engineering and infrastructure advisory company Aurecon become the first employer to launch a visual employment contract across its workforce in Australia.

The brief?  To assist in re-imagining the standard written employment contract into an interactive and vibrant agreement, which governs the employment relationship and embodies the culture and values of the business.

To learn more about how comic illustrations and avatars replaced legalese, removing 4000 words from the original contract, please refer to Aurecon’s website and/or the AFR’s website.

Legal representation in the post-Fitzgerald world – difficult but not impossible

In October 2017, a Full Bench of the Fair Work Commission in Fitzgerald v Woolworths[1] challenged the common understanding of “representation” by a lawyer, by finding it involves a wide range of activities connected with litigation and is broader than just oral advocacy before the FWC.  As lawyers (and paid agents) must obtain the FWC’s permission to represent their client in a matter before the FWC,[2] this broader interpretation of representation has certainly made life more difficult for lawyers.

So, when will permission for legal representation be granted and, in light of Fitzgerald, can lawyers still assist their clients if permission is refused?

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Hello, Bonjour: Parliament Set to Rethink Official Language Requirements in the Provision of Federal Services

In anticipation of the 50th anniversary of Canada’s Official Languages Act (the “OLA” or the “Act”), the Federal Government recently announced a historic $2.7 billion in funding to support Canada’s official language minority groups and promote official bilingualism from coast to coast.

Specifically regarding the provision of services, the 2018 Federal Budget Plan informs that the Government will endeavour to improve access to services in the official minority language offered by federal institutions, specifically for Quebec’s English-speaking communities. Moreover, the Action Plan for Official Languages – 2018-2023: Investing in Our Future confirmed the Government’s ongoing commitment to review the Official Languages Regulations for Communications with and Services to the Public (the “Regulations”), which, among other things, define the circumstances wherein a demand for services in either official language will be deemed “significant” under the OLA. The Regulations also detail specific instances when services must be offered in either official language, such as offering services to the traveling public, or depending on the nature of the office. The 2018-2023 Action Plan states that the end-goal of this regulatory overhaul is to improve the provision of services to members of the public in both official languages, namely with respect to transportation-related services. The regulatory review should be completed by 2019. Finally, we note that the Government has pledged significant funding dedicated to the recognition of the National Capital’s official bilingual character, thus supporting provincial and municipal efforts to create and ensure the provision of public services in the language of the official minority in Ottawa.

What does this mean for service providers subject to the Act? Currently, federal institutions subject to Part IV of the OLA that provide services and communicate with the public must ensure that they, or any person or organization acting on their behalf, actively offer services in either official language within the National Capital Region or elsewhere in Canada, where the demand for services in either French or English is deemed “significant”. Exact details on what we can expect from Parliament’s review of the Regulations are not yet clear. However, redefining the scope or meaning of the “significant demand” criterion may be one of the possible changes impacting service providers’ obligations with respect to the provision of services offered in either official language. Until the extent of these potential changes is fully known, service providers would do well to consider whether they are currently required to offer services in either official language and, if so, ensure that the provision of their services is OLA compliant. The failure to do so may lead to a complaint before the Office of the Commissioner of Official Languages and, in certain cases, may evolve into litigation before the Federal Courts.

We will continue to monitor this situation closely, and provide updates when more information is made available.

The authors wish to thank Lucas Rivest-Crothers, articling student, for his contribution to this publication.

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