Employment & Benefits updates

Australia

Fiery fight over Metropolitan Fire and Emergency Services Board's latest agreement
  • Australia
  • 15 January 2020

In 2019 the Metropolitan Fire and Emergency Services Board and the United Firefighters Union of Australia Operational Staff Agreement 2016 was approved. The approval of the agreement raised a number of issues, including whether Section 195 of the Fair Work Act 2009 (Cth), which prohibits the approval of enterprise agreements containing discriminatory terms, includes a prohibition on indirect as well as direct discrimination.

Poorly managed performance improvement plans: how to avoid adverse action claims
  • Australia
  • 08 January 2020

In an ironic turn of events, a poorly implemented and followed performance improvement plan (PIP) resulted in an employer having to pay A$205,342 to an employee who had brought a successful adverse action claim in the Federal Circuit Court. The court held that the employer had contravened the general provisions under the Fair Work Act 2009. This article provides practical tips on how employers can avoid a PIP resulting in an adverse action claim.

When disaster strikes: managing employees following a natural disaster
  • Australia
  • 18 December 2019

The current fires in New South Wales and Queensland are a timely reminder for employers to review their business arrangements for responding to such crises, particularly in workforce management, and ensuring that they have a plan in place to deal with the aftermath. This article provides some guidance on the kinds of things that employers need to think about following a natural disaster.

Consultation: is a dismissal harsh, unjust or unreasonable without it?
  • Australia
  • 06 November 2019

Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision by the Fair Work Commission, the answer is not necessarily. The decision highlights that there are certain circumstances where an employer may be safe from an unfair dismissal claim if it proceeds to termination without consulting the employee. However, these situations are highly exceptional and should be approached with caution.

It's official: all permanent employees are entitled to 10 working days' paid sick leave... for now
  • Australia
  • 23 October 2019

The Fair Work Ombudsman recently released advice that all permanent employees are entitled to 10 days of paid personal/carer's leave for each year of their employment. This is a major departure from calculating personal/carer's leave entitlements in hours, which is the approach currently taken by most employers and employees. However, the ombudsman's advice is based on a recent court decision which may not stand.


Austria

Contributed by Graf & Pitkowitz Rechtsanwalte GmbH
Collective agreements trump Working Time Act
  • Austria
  • 18 March 2020

Following amendments to the Working Time Act, it was unclear whether the new statutory regime regarding working time overrides collective bargaining agreements that have not been adapted to the new maximum work hours and provide for a daily maximum of 10 working hours for flexitime. In the first decision on this issue, which will have far-reaching consequences, the Supreme Court has clarified all relevant questions regarding the collective bargaining agreement for metal workers.

Gig economy un-gigged: collective bargaining agreement for bike couriers
  • Austria
  • 18 December 2019

From 1 January 2020, bike couriers' employment relationships will be governed by a newly enacted collective bargaining agreement. Bike couriers in Austria now enjoy rights and benefits which are similar to employees in other sectors. While this is good news for bike couriers, it remains to be seen whether customers will have to pay the bill because of increased prices for courier services.

Teachers and brothels
  • Austria
  • 02 October 2019

The Supreme Court recently confirmed an appellate court's decision and ruled that a school teacher who had moonlighted as a brothel manager had been eligible for termination because this sort of behaviour could be considered a breach of trust and damaging to the school's reputation. The case was eventually decided in view of the perceived criminality of sex workers and their employers among the general public. However, this perception arguably depends on who is asked.

New 'daddy month' strengthens paternal bonding early on
  • Austria
  • 31 July 2019

Parliament recently passed a new law that grants fathers a legal entitlement to one month off work following the birth of their child. Dubbed the 'daddy month' by the media, this entitlement seeks to fill a gap that puts fathers at a disadvantage when it comes to childcare immediately following the birth of their child.

Supreme Court on hairstyles and discrimination
  • Austria
  • 08 May 2019

An employee recently sued for damages and compensation for gender discrimination when his job application was rejected because he had long hair. Originally unsuccessful, when the employee learned that the defendant's employee handbook contained rules on employees' outer appearance, he sued again and succeeded, as the Supreme Court found that the employee handbook was prima facie evidence of gender discrimination.


Bermuda

Pension scheme amendments
Carey Olsen Bermuda
  • Bermuda
  • 29 January 2020

Provisions of the National Pension Scheme (Occupational Pensions) Amendment Act 2019 recently came into force. Employers should now be familiar with some of the upcoming changes, which include the requirement to keep records in relation to payroll and employee-related pension information.

Know your rights when made redundant
Carey Olsen Bermuda
  • Bermuda
  • 06 March 2019

Bermuda's reinsurance market has not been immune to changes in the world's economic market. A rise in mergers and acquisitions has led to an increase in redundancies within the Bermuda workforce. Employees should be aware of their rights when made redundant and should always seek legal advice to ensure that their redundancy is both lawful and fair.


Brazil

Contributed by CGM Advogados
Coronavirus in Brazil: what employers need to know
  • Brazil
  • 25 March 2020

With the coronavirus (COVID-19) pandemic continuing to affect the world – and employment law – this article answers FAQs for Brazilian employers. For example, can companies cancel job offers prior to the start date? And who pays for employees' time away from work due to COVID-19?

What is PM 905 and will it lead to another labour reform in Brazil?
  • Brazil
  • 19 February 2020

Provisional Measure 905/2019 (PM 905) was recently published in the Official Gazette, creating a new type of employment agreement specifically designed to incentivise companies to offer individuals aged between 19 and 29 their first formal job in exchange for benefits relating mainly to payroll taxation. The final decision regarding PM 905 should happen after April 2020 but, in the meantime, companies should seek legal advice while implementing the proposed changes.

Superior Labour Court rules out simultaneous use of hazard allowance and risk premium
  • Brazil
  • 11 December 2019

The Labour Code provides for two payments which eligible employees can receive in addition to their base salary: the hazard allowance and the risk premium. Since 2015, the Superior Labour Court panels have issued conflicting decisions on whether employees can receive the hazard allowance and the risk premium simultaneously. Now, the Superior Labour Court has determined that the additional payments cannot be received simultaneously, even if employees are exposed to different adverse conditions.

Outsourcing: a new paradigm
  • Brazil
  • 16 October 2019

In a recent decision, the Supreme Court addressed an important question relating to the day-to-day activities of companies operating in Brazil: is the outsourcing of services allowed without restriction or should it be limited to non-core business activities, as set out by Precedent 331 of the Superior Labour Court? This decision is relevant because it will affect the standards adopted by the Brazilian labour courts in relation to outsourcing.


Canada

Contributed by Fasken
COVID-19 and workplace government updates: cross-Canada review
  • Canada
  • 25 March 2020

Governments across Canada have recently made multiple announcements regarding the coronavirus (COVID-19) pandemic. To help make things easier for employers, this article summarises the announcements from all provinces that touch on workplace issues. Common issues concerning COVID-19 include self-isolation, sickness benefits and layoffs.

To vest or not to vest: stock options and equity-based plans in wrongful dismissal claims
  • Canada
  • 18 March 2020

Stock options and restricted share unit (RSU) plans are used by employers to attract, reward and retain employees for the long term. While these tools can be useful, such plans should include unequivocal language limiting entitlements on termination of employment to avoid significant liability for employers. The Ontario Court of Appeal recently provided guidance on the enforceability of provisions of stock options and RSU plans that purport to limit the entitlements of an employee on termination.

Pandemic planning for employers: responding to coronavirus
  • Canada
  • 11 March 2020

Employers must be prepared to deal with workplace issues arising from Coronavirus Disease 2019 (COVID-19) as global health officials almost uniformly agree that the disease will continue to spread. This article outlines the issues with which employers should be prepared to deal as part of a pandemic or communicable illness response plan with regard to COVID-19.

Ontario Labour Relations Board rules that Foodora couriers can unionise
  • Canada
  • 04 March 2020

In its first gig economy decision, the Ontario Labour Relations Board has decided that Foodora's food delivery couriers are dependent contractors and can unionise. This is the first Ontario decision on the status of gig economy workers. However, these determinations are extremely fact specific and do not mean that all gig economy workers are dependent contractors.

Employees' right to sue for constructive dismissal
  • Canada
  • 26 February 2020

Employees should be treated with dignity and respect. Accordingly, employers risk breaching an employment contract by condoning harassment in the workplace and creating a hostile work environment, which – in turn – may give rise to a constructive dismissal claim. Employers facing a constructive dismissal claim resulting from workplace harassment should assess whether the claim falls within the jurisdiction of workers' compensation legislation, rather than the civil courts.