Federal Government Releases Proposed Amendments to Personal Information Protection and Electronic Documents Act
On May 25, 2010, the federal government introduced proposed amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) that will, if passed, affect the way that certain employers, including banks, telecommunication companies and airlines, handle personal information about their employees. These proposed amendments bring much needed clarity to the application of PIPEDA in the employment context.
Continue Reading...Employer's Second Thoughts are Permitted in an Unjustified Dismissal
In a dispute recently litigated in Spain, the employer acknowledged that the discharge of the employee was unjustified and thus sought to pay severance. An indemnity package was offered, but the employee never accepted it. In turn, the employee filed suit alleging the amount to be paid should be higher, in conformity with seniority he had accrued. Eventually, the Madrid Superior Court confirmed the court of first instance's ruling by granting the employee's lawsuit.
The issue that truly came into play was that, after such decision, in conformity with Section 56.2 of the Workers' Statute Act, employers are--within five working days after the ruling being notified--legally entitled to pay proper severance or reinstate the employee in his last position with equal rights. In this regard, the Spanish Supreme Court has examined whether an employer's first stance to terminate an employee is binding, or whether a choice between severance payment or reinstatement is still possible.
Continue Reading...Legislative Update for the Week of May 17
OSHA Proposes to Revise Standards Governing Fall Protection
The Occupational Safety and Health Administration (OSHA) is set to issue a proposed rule to revise the agency's walking-working surfaces and personal protective equipment standards. The revision is intended to reduce the number of fall-related employee deaths and injuries by updating the rule to include new technology and industry methods. Read the full post here. (May 21)
Compromise Bill Extending COBRA, Unemployment Benefits Introduced
House Ways and Means Committee Chairman Sander Levin (D-MI) and Senate Finance Committee Chairman Max Baucus (D-MT) introduced a summary of the American Jobs and Closing Tax Loopholes Act, joint legislation that, among other things, extends emergency unemployment benefits and COBRA credits through the end of 2010, and provides pension funding relief for single- and multi-employer pension plans. Read the full post here. (May 21)
Supreme Court's New Counting Unit Criteria for Layoffs
In a ruling that sets case law in Spain, the Supreme Court ruled that counting unit criteria to undergo a collective dismissal procedure under the Workers' Statute Act is the total number of employees in the workforce instead of only those employees located in the affected location.
The decision is extraordinarily useful and sheds light on the statutory dilemma that companies have faced: while European Directive 98/59 sets forth the working place as a reference unit of counting, Section 51.1 of Spain's Workers' Statute Act provides that all employees in a company be counted.
Continue Reading...Legislative Update for the Week of May 10
Senate Approves Financial Reform Amendment Ending Bonuses for High Interest Loans
The Senate approved by a 63-36 margin an amendment to the Restoring American Financial Stability Act of 2010 (S. 3217) - the financial reform bill currently under Senate consideration - that would prevent mortgage brokers from receiving bonuses for signing borrowers to high interest loans. Read the full post here. (May 14)
Resolution Introduced Opposing National Mediation Board Final Rule on Election Procedure
The same day the National Mediation Board published a final rule amending its representation election procedure to make it easier for employees in the air and rail industries to unionize, Sen. Johnny Isakson (R-GA) introduced a measure calling for Congressional disapproval of the agency's action, which is the first step in allowing Congress to overturn the rule. Read the full post here. (May 12)
Requirement to Have Degree Not Indirect Age Discrimination
The Court of Appeal has ruled, in Homer v Chief Constable of West Yorkshire Police, that an employer did not indirectly discriminate on grounds of age against an employee over 60 by making attainment of a higher pay grade dependent on having a law degree.
West Yorkshire Police introduced a requirement that to be graded at the top grade for legal adviser, and to receive the higher salary linked to that grade, an employee had to have a law degree. The claimant (H), who was 61, successfully argued before an employment tribunal that this amounted to indirect age discrimination because someone in his age group would not be able to finish the course and obtain a degree before reaching the employer's normal retirement age.
Continue Reading...Challenging Union Rights
A recent judgment of the Supreme Court (of 7 April 2010; II PK 342/09) allows the employer to sue a union activist to establish his/her rights, for example whether the number of hours claimed for union work is substantiated by the number of members. In such a suit the number of union members is subject to verification by the court.
The judgment is currently known from the press only. Under Polish law, courts are not legally obligated to follow Supreme Court judgments.
Significant Changes to Victorian Equal Opportunity Act 2010
On 15 April 2010, the Victorian Government passed the Equal Opportunity Act 2010 (Act). The substantive provisions of the Act commence on 1 August 2011. The Act introduces new obligations that will impact employers with Victorian or Australia-wide operations, including a new duty to eliminate discrimination, sexual harassment and victimisation.
It also heralds a new era in complaint handling by the Victorian Equal Opportunity and Human Rights Commission by giving the powers to investigate discrimination, sexual harassment and victimisation even without a complaint and to issue compliance notices to employers.
These changes may foreshadow the future trend of legislative changes in other states and territories across Australia.
Read the full post here.
This entry was written by Kate Jenkins and Lisa Croxford.
Proposed Board Diversity Requirements in Australia
On 22 April 2010, the Australian Stock Exchange (ASX) released its much-awaited Exposure Draft of the proposed ASX Recommendations. The proposals mean that publicly listed clients will need to consider reviewing existing policies, or creating new ones, around board and company wide diversity initiatives. The impact of the ASX Recommendations is however not only limited to listed companies.
Read the full post here.
This entry was written by Kate Jenkins and Lisa Croxford.
New Paid Parental Leave Scheme Released
On May 4, 2010, the Australian Federal Government introduced draft legislation of Australia's first Paid Parental Leave Scheme. Australia is one of two countries participating in the Organisation for Economic Co-operation and Development (OECD) without a national paid parental leave scheme. The Bill will introduce up to a maximum of 18 weeks of government-funded paid parental leave for eligible parents of children born, adopted or placed on or after 1 January 2011.
Read the full post here.
This entry was written by Kate Jenkins and Lisa Croxford.
Federal Government Releases Draft Amendments to Pension Solvency and Investment Limits
The federal Department of Finance has released draft amendments to the regulations under the Pension Benefits Standards Act, 1985 (the "PBSA") that would change solvency funding requirements and quantitative investment limits.
Continue Reading...Canadian Employees Are Among Most Satisfied with their Employers
Arbitrator Awards Employee $500,000 for "Bad Faith" Termination
A labour arbitrator has awarded a unionized employee more than $500,000 for loss of income, mental suffering, and punitive damages after her employer acted in bad faith when it terminated her employment on the basis that she was malingering when she stayed off work an extra week to recover from surgery.
Continue Reading...Legislative Update for the Week of May 3
Health Care Law Will Impose Various Obligations on Employers, Insurers Over Time
The newly enacted Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively known as "PPACA"), has set in motion significant changes to this country's health care system, many of which have and will impose new responsibilities on employers, insurers, benefits administrators, and the health professional community in general. Read the full post here. (May 7)
Department of Labor Announces "Plan/Prevent/Protect" Business Compliance Program
The Department of Labor announced a new regulatory and enforcement strategy, the "Plan/Prevent/Protect" initiative, that will require businesses to establish and enforce plans for identifying and remedying labor law violations. Read the full post here. (May 6)
Reform of the Victorian Workers' Compensation System
On 11 March 2010, the Victorian Parliament passed the Accident Compensation Amendment Act 2009 (Vic) (Amending Legislation), which contains significant reforms to the workers' compensation legislation.
Continue Reading...Must Enterprise Agreements Provide for Compulsory Arbitration?
On 26 February 2010, the Full Bench of Fair Work Australia (FWA) upheld an appeal in Woolworths Ltd t/as Produce and Recycling Distribution Centres [2010] FWA 30. This was an appeal against the decision of Commissioner Smith, who refused to approve an enterprise agreement because it did not contain a compulsory arbitration procedure to settle disputes.
Continue Reading...Important High Court Decision Regarding OHS Regulation in NSW
On 3 February 2010, the High Court handed down its decision in Kirk v Industrial Relations Commission of
In addition to having significant implications for the conduct of prosecutions in
Final Productivity Commission Report Released
On 4 January 2010, the Productivity Commission's Final Report into Director and Executive Remuneration (Report) was released by the Federal Government.
The Report contains 17 recommendations covering areas such as remuneration principles and disclosures, shareholder engagement and conflicts of interest. In the main, these recommendations reflect those contained in the draft report, including the draft recommendations to restrict remuneration report disclosures to key management personnel and to simplify the remuneration report, and the draft recommendation that cessation of employment be removed as a taxing point for deferred equity subject to forfeiture.
Continue Reading...Legislative Update for the Week of April 26
Draft Immigration Proposal Calls for Biometric Employment Verification, Increased Penalties Against Labor Law Violators
A 26-page outline of the proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Read the full post here. (April 30)
Financial Reform Bill Contains Say-on-Pay Provisions
Buried in the Restoring American Financial Stability Act of 2010 (S. 3217), the massive financial reform bill currently under Senate scrutiny, are provisions governing shareholder input on executive compensation and compensation committee independence. The so-called "say-on-pay" provisions call for a shareholder vote on executive compensation disclosures, and require that each member of the company's compensation committee be an independent member of the board of directors. Read the full post here. (April 30)
Conference Produces Roadmap for Eliminating Worst Forms of Child Labor
The International Labour Organization (ILO) announced that, during a recent conference attended by high-ranking government officials, representatives from employers' and workers' organizations, international organizations and academics, delegates from 80 countries agreed on a "Roadmap" aimed at "'substantially increasing' global efforts to eliminate the worst forms of child labor by 2016," a target initially set in 2006 by the ILO's Global Action Plan (pdf).
The Roadmap calls on governments to:
- assess the impact of relevant policies on the worst forms of child labor;
- enact preventive and time-bound measures; and
- devote adequate financial resources to combating the worst forms of child labor.
Additionally, the Roadmap calls on non-governmental entities to actively play a role in prohibiting and eliminating the worst forms of child labor through policy and program development.
The Roadmap is significant because, although progress has been made in reducing child labor globally, a recent ILO Global Report concluded that efforts were slowing and, as a result, the 2016 goal would be difficult to reach.
Immigration Update for the Week of May 3
United States: ICE Serves Audit Notices on 30 Tennessee Businesses
Of the 180 businesses that recently received audit notices from U.S. Immigration and Customs Enforcement, 30 are located in Tennessee. Read the full post here. (May 7)
Switzerland Makes Available an Additional 5,500 Work Permits
Switzerland will issue an additional 5,500 work permits in 2010 for individuals from countries outside the European Union and the European Free Trade Association, thereby doubling the number of available work permits to 11,000, according to Swissinfo. Read the full post here. (May 7)
European Governments Debating Burqa Bans
Silvana Koch-Mehrin, Vice President of the European Parliament, recently expressed her support for a continent-wide ban on burqas, the garment worn by some Muslim women which covers the entire body save for a mesh screen over the eyes, reports Jurist. While support for the ban exists, various political leaders have spoken out against such action.
At the national level, several European countries previously considered or currently are contemplating various bans.
More information on the various types of religious garments worn by Muslim women and the treatment thereof in
Image credit: Cedric Puisney
Immigration Update for the Week of April 26
United States: Updated Numbers Released for Fiscal Year 2011 H-1B Visas
U.S. Citizenship and Immigration Services announced that, as of April 22, 2010, it has received 16,025 H-1B Regular Cap and 6,739 H-1B Master's Exemption petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). Read the full post here. (April 29)
United States: Arizona Governor Signs Controversial Immigration Enforcement Bill
Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the "broadest and strictest immigration measure in generations." The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure's legality. Read the full post here. (April 28)