Employment & Benefits updates

Chile

Contributed by Porzio Rios Garcia
Civil court declares nullity of 16 inter-company unions
  • Chile
  • 14 August 2019

The 24th Civil Court of Santiago recently found that 16 inter-company unions had been created with the sole purpose of granting union privileges to their leaders and ordered the unions to be removed from the Labour Authority's register. The ruling is of great relevance as it is the first time that a civil court has dissolved a union for illicit activity contrary to the spirit of the law that regulates labour organisations.

Change of Supreme Court doctrine regarding limitation periods in employment actions
  • Chile
  • 13 March 2019

The Supreme Court recently decided a variation on limitation periods for employment actions – the so-called 'content doctrine' – which stresses the nature of relief sought by plaintiffs. However, the doctrine is problematic, as it implicitly extends limitation periods by calculating them from the date of termination of employment and not from the date on which any wrongdoing was committed.

Santiago court holds state agencies liable for negligent protection of trapped miners' occupational safety
  • Chile
  • 14 November 2018

The Ninth Civil Court of Santiago recently held that three state agencies had been negligent in protecting the occupational safety of 31 trapped miners and ordered the Treasury to pay approximately €101,523 to each miner. In its defence, the state argued that the significant amount spent in rescuing and compensating the miners (approximately €8.63 million) had protected their moral suffering.

Companies may continue to offer historical benefits to non-union employees without union consent
  • Chile
  • 29 August 2018

Following a recent opinion rendered by the Labour Board, companies may continue to extend to non-union employees benefits which they received before they were added to a collective bargaining agreement, because such benefits are not an attribute of the collective bargaining agreement for non-union employees. This new position impedes union interference in the granting of benefits to employees who are not involved in union activity.

Employment liability cannot be avoided by hiring staff through affiliates or related entities
  • Chile
  • 20 June 2018

When structuring their businesses, companies must keep in mind that employment liability cannot be avoided by hiring personnel through their company affiliates or related entities. Fines may apply if the existence of multiple companies under a common employment management is found to be a scheme to avoid compliance with employment rights (eg, allocating profits in one company but hiring employees in another).


Cyprus

Supreme Court declares legislation extending paternity leave and benefits to unmarried fathers unconstitutional
George Z Georgiou & Associates LLC
  • Cyprus
  • 06 March 2019

In late 2018 the House of Representatives introduced amendments which granted paternity leave and benefits to unmarried working fathers. However, the government referred the amending laws to the Supreme Court, claiming that they would add unbudgeted costs to its budget and therefore violate the Constitution. The Supreme Court recently accepted the government's position and declared the amendments unconstitutional.

Employment law amendments introduced for seagoing vessels and crew
  • Cyprus
  • 20 February 2019

Four employment laws concerning seagoing vessels and their crew were recently amended. Among other things, the amendments relate to transfers of seagoing vessels and their crew under a transfer of undertakings, the definition of a 'competent authority' for notifying collective redundancies and the role and protection of merchant vessel crew members who act as employee representatives.

Supreme Court clarifies burden of proof in wage protection cases
  • Cyprus
  • 28 November 2018

Cyprus case law has long established that reverse onus in criminal cases does not transfer the burden of proof to defendants; rather, it allows them to create reasonable doubt with respect to their guilt. A recent Supreme Court decision has confirmed this in regard to wage protection and clarified that all criminal courts (ie, not just employment tribunals) must examine the facts that establish employment relationships and interpret employment contracts where said facts are disputed.

Legislation extending paternity leave to unmarried fathers referred to Supreme Court
  • Cyprus
  • 19 September 2018

The Protection of Paternity Law provides paternity leave only to men who are married to their child's mother before the child's birth or adoption. The House of Representatives recently tried to address this oversight by introducing an amending law, under which all fathers would be entitled to paid paternity leave regardless of their marital status. However, these changes have yet to come into force because the president referred the amending laws to the Supreme Court, claiming that they are unconstitutional.

Industrial Disputes Tribunal rules that contract for services constitutes contract of employment
  • Cyprus
  • 01 August 2018

The Industrial Disputes Tribunal recently issued a decision regarding a person working for the Cyprus Tourism Organisation (CTO) under a series of fixed-term contracts, some of which were referred to as contracts of employment and others as contracts for services. The tribunal ruled that, even when working under an alleged contract for services, the applicant was a CTO employee working under a genuine contract of employment.


European Union

Contributed by Allen & Overy LLP
EU member states must require employers to record working time systematically
  • European Union
  • 22 May 2019

The European Court of Justice recently ruled that EU member states must require employers to establish an objective, reliable and accessible system for measuring their employees' daily working times. Without such a system, the hours and overtime actually worked cannot be reliably measured and employees' ability to enforce their rights cannot be guaranteed.

Correct implementation of employment contracts: favourability assessment in case of dispute
  • European Union
  • 05 December 2018

With respect to employers with a multi-jurisdictional presence in the European Union, where a dispute arises between them and an employee concerning the law applicable to cross-border employment contracts, it is first necessary to assess whether the objectively applicable law was deviated from by way of a choice-of-law clause. If so, it is then necessary to determine whether this affects the objectively applicable law's mandatory provisions and whether these are more favourable to the employee than the law chosen.

Correct implementation of employment contracts: choice of law and applicable law
  • European Union
  • 28 November 2018

In employment contracts with a cross-border reach, it is always necessary to determine the objective law to which the contract is to be subject and to what extent this may be deviated from by way of a choice-of-law clause. While the primary deciding factor in this context is the place in which employees generally perform their work, a number of problems may be encountered when determining where this is.

Cross-border reorganisation – transfers of foreign units to domestic companies
  • European Union
  • 21 November 2018

Foreign companies planning to transfer local business units to a domestic company must first resolve a number of issues. Since the cross-border spin-off is currently not regarded as a feasible option, the transfer of assets and liabilities must be effected by way of an asset deal. In Europe, this generally triggers a business transfer under local law whereby the employment contracts of the staff within the unit in question are transferred to the domestic company.

Cross-border reorganisation – foreign companies with a local branch
  • European Union
  • 14 November 2018

Many international companies run their domestic operations via a branch of a foreign parent, rather than a locally established company. While cross-border spin-offs are theoretically permitted under European law, they do not represent a feasible option due to inadequate domestic regulations. Whether such reorganisations will affect workers' employment status and works councils' co-determination rights, particularly following a change in operations, must be assessed on a case-by-case basis.


France

Contributed by Coblence & Associés
Industrial tribunals against the Macron scale: rebels with a cause?
  • France
  • 26 June 2019

The so-called 'Macron ordinances' overhauled the Labour Code in September 2017. One of the main effects was the introduction of a schedule of damages in French labour law, whereby a judge can award damages for unfair dismissal only within certain limitations depending on the employee's seniority. While some lower courts have applied the new law, an increasing number of courts are challenging it on the basis that it would be contrary to international law.

Troubled times for digital platforms
  • France
  • 17 April 2019

While French employment law has a reputation for being strict, judges have only recently been faced with the challenge of determining whether individuals who work for digital platforms are employees of said platforms or self-employed. As France has been somewhat reluctant to address the employment status of digital platform workers and has issued only a few pieces of legislation in this regard, recent decisions on platform workers' employment status have garnered significant interest.

Can employees be disciplined for their Facebook comments?
  • France
  • 31 October 2018

In recent years, the Court of Cassation and the courts of appeal have ruled in several cases relating to inappropriate or offensive Facebook comments made by employees against their colleagues, managers or employers. However, an analysis of the rulings shows that the courts remain hesitant to establish a legal framework to govern the various, fast-changing facets of this particular social network.

Terminating employment contracts by mutual agreement: 10 years later
  • France
  • 29 August 2018

The Modernisation of the Labour Market Act recently celebrated its 10th anniversary. The act introduced a legal procedure for terminating employment contracts by mutual agreement that has proven successful over time. No fewer than 36,600 mutual termination agreements were signed in May 2018 alone, an increase of more than 5.5% compared to the previous month. However, despite their relative simplicity and flexibility, mutual termination agreements are far from perfect.

Overview of new rules on employees' elected representation
  • France
  • 04 April 2018

The new majority in Parliament has announced, and in some cases already enacted, many changes. Among them, those dealing with employees' representatives are important, as they reshape a significant part of the Labour Code. While these changes are not expected to radically alter industrial relations in the workplace immediately, some of the major modifications and their general characteristics are worth highlighting.


Germany

Contributed by Mayer Brown
Risks associated with engagement of external personnel
  • Germany
  • 24 July 2019

There is a considerable need for external personnel – partly due to the current labour market's limited supply of highly qualified specialists willing to work as employees in some areas and partly due to the increasing demand for flexibility. However, while engaging external personnel allows companies to concentrate on their core competencies and provides easier access to external know-how, it also carries considerable legal and economic risks if handled improperly.