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Labour & Employment Law 2016

virtual round table

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ROUND TABLE: LABOUR & EMPLOYMENT LAW 2016

usana coordinates CMS RPA’ labour team since 2010. Her main areas of activity include preventive legal advice, as well as planning, coordination and implementation of restructuring and harmonization

of staff boards in multinational companies. She is also specialized in the implementation of disciplinary procedures and other litigation labour law.

Recognized by Iberian Lawyer with the “Forty under 40” award. Susana was considered as a “Leading Individual” by Legal 500.

She was granted twice the title of Expert Lawyer in Employment Law, given by the Portuguese Bar Association.

Susana Afonso’s work has been particularly acknowledged in the area of restructuring of staff establishing plan resulting from merger processes, transmission of establishment or other forms of corporate reorganisation.

lement Law Limited brings a fresh and personalised approach to employment law and HR advice for employers and employees in London and the South East, including Kent and Sussex. Element Law is Kate Lawson, a flexible, approachable experience specialist employment lawyer.

Individuals sometimes don’t recognise all of the options available to them. Whether they are starting a new job, have a problem with a current employer or need advice on a settlement agreement, Element Law can help.

Employers often discover the value of good employment advice too late. Element Law helps them to get the best out of their people and to stay one step ahead with services that range from providing contracts of employment and staff handbooks to advising on redundancies and grievance and disciplinary disputes.

Element Law provides a friendly and personal employment law service which is solution-focused and cost effective.

mmanuelle heads the employment team and French Desk at international specialists EBL Miller Rosenfalck. The majority of her practice is focused on assisting non-UK clients with employment

issues in the UK. She has ‘‘developed a particular specialism in handling discrimination cases” (Chambers Global 2012 directory) and is “principally concerned with advising foreign companies on the UK employment angles of cross-border transactions” (Chambers Global 2013 directory).

aleria Savchuk Joined VKP in September 2011. She specializes in labour law issues, including labour disputes, drafting employment contracts for top management, placement of foreigners. She also specializes in data protection issues, family and inheritance law issues, disputes on

protection of consumers, as well as defamation claims.

MEET THE

Susana Afonso - CMS Rui Pena ArnautT: +351 210 958 161E: [email protected]: www.cms-rpa.com

Kate Lawson - Element LawE: [email protected]: www.elementlaw.co.uk

Emmanuelle Ries - EBL Miller RosenfalckT: +44 (0)20 7553 9938E: [email protected]: www.millerrosenfalck.com

Valeria Savchuk - Vasil Kisil & PartnersE: [email protected]: www.vkp.ua

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ksana Voynarovska has profound theoretical knowledge and extensive practical experience in labour law issues, including drafting employment contracts for top management, legal support in dismissal

of personnel, preparation and negotiation of collective bargaining labour agreements, restructuring, data protection etc. For many years Mrs. Voynarovska has been advising on reconciling the international corporate employment standards with the complex and sophisticated Ukrainian labour legislature and representing the clients’ interests in courts in the context of labour disputes.

oydeep Hor is People + Culture Strategies Founder and Managing Principal. He is one of Australia’s most well-known workplace relations lawyers due to his high media profile (both as a sought-after

media commentator and prolific keynote speaker including appearing regularly as a guest commentator on Sky Business Channel) and his representation of several high profile clients throughout his career.

While an expert in all areas of workplace relations, Joydeep is one of Australia’s “go to” lawyers for complex and sensitive terminations of employment and also for addressing all aspects of workplace behaviour and culture.

With professional qualifications already as a Fellow of the Australian Human Resources Institute, Chartered Fellow of the United Kingdom’s Institute of Personnel and development, a Master of Laws from University of Sydney (where he previously completed a Bachelor of Laws with Honours degree and a Bachelor of Arts majoring in English literature) Joydeep has been accepted into and is currently completing Harvard Business School’s Owner/President Program.

egal Oracles has the distinction of being the pioneer law firm in Afghanistan since 2004 with the unique capability to provide 24/7 ground legal services with an experience and effective team consisting

of both foreign qualified and Afghan-licensed lawyers. The lawyers in its Kabul office are fluent in various regional languages such as Pashto and Dari, in addition to foreign languages such as English, Arabic and Urdu.

Legal Oracles’ offices in Kabul, Islamabad, Peshawar, UAE and China provide coordinated legal advice and transactional capability to clients in the region.

Legal Oracles has been involved as local legal counsel in aircraft financing, aircraft mortgages, dry and wet leases, and for re-insurers in the settlement of insurance and its disbursement to the legal heirs of the victims of airplane crashes in Afghanistan since 2005. Legal Oracles advises many of the largest multinational and national companies and corporations in Afghanistan and has played a substantial role in complex and noteworthy transactions during the past few years in various sectors. One of its distinctions among others is the involvement of Legal Oracles’ partners in legislative drafting and regulations in the financial sector laws of Afghanistan.

MEET THE

Oksana Voynarovska - Vasil Kisil & PartnersT: +380 (44) 5817777E: [email protected]: www.vkp.ua

Joydeep Hor - People & Culture StrategiesT: +61 2 80943101E: [email protected]: www.peopleculture.com.au

Ghazi Khan - Legal OraclesT: +92-51-2111085E: [email protected]: www.legaloracles.com

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1. Have there been any recent regu-latory changes or interesting develop-ments?

Afonso: Yes, in 2015, there were sever-al relevant amendments to the Portu-guese employment legislation, which, in broad terms and non-exclusively, consisted in the following:• Extension, for the whole of 2015, of the provisional twelfths regime within the payment of the Christmas and holiday allowances;• Ending of the provisional regime foreseen for extraordinary renewals of term employment contracts (in force since November 2013);• Establishment, for 2016, of the en-titlement age for a retirement pension at 66 years and 2 months;• Introduction of the possibility of payment of Social Security debts in 150 instalments, instead of the previ-ously foreseen 120;• Reinforcement of the maternity and paternity rights (Law no. 120/2015, of 1 September) – Amid the most rel-evant changes, we may point out:- The possibility, for both parents, to simultaneously enjoy an initial pa-rental leave between 120 to 150 days

(notwithstanding the mother’s legal rights in this regard);- The increase of the initial paren-tal leave in 30 days, when, after the mandatory leave period by the moth-er, each of parents enjoy, exclusively, a 30 consecutive day period or two pe-riods of 15 consecutive days; the ini-tial parental leave for the father was increased from 10 to 15 working days (consecutive or alternate); - For parents with children aged less than three, it is established that they may work under a telework regime, as long as compatible with the respective duties and provided that the employee has the appropriate working tools;- Flexible working arrangements must always be expressly agreed in writing.• Withdrawal of the eligibility to re-ceive public subsidies or State grants when a company, in the previous two years, was convicted of an offence for an unlawful dismissal of a pregnant or breastfeeding employee.• Establishment of equal treatment, in respect of gender identity, in the ac-cess to the labour market and within the employment relationships.

Ries: Shared Parental Leave came into force in April 2015. The first two weeks compulsory maternity leave is retained but eligible parents will be able to share some or all of the remaining maternity (or adoption) leave and pay, replacing additional paternity leave. The new re-gime is enlightened, but complex, with enhanced pay practices posing a dilem-ma for employers. If enhanced mater-nity leave pay is not applied by the or-ganisation to fathers taking Shared Pa-rental Leave, this could be potentially discriminatory.

With effect from 26 May any employer paying their employees less than the National Minimum Wage can now be fined up to £20,000 per worker. Pre-viously, there was a maximum penalty of £20,000 for a breach irrespective of the number of workers affected.

Lawson: A case which seems to have grabbed the attention of my clients is that of EAD Solicitors LLP and others v Abrams (UKEAT/0054/15/DM) where the EAT held that a company can be a victim of and bring a claim for discrimi-nation based on a protected charac-teristic held by one of its directors or

Labour & Employment Law Roundtable 2016

shareholders. It is predicted this will lead to a real increase in cases being brought by companies in the Employ-ment Tribunal. It will be interesting to see how this point develops and par-ticularly how courts would deal with issues such as injury to feelings. The matter is most likely to have in impact in respect of service companies but is likely to also reach beyond employ-ment law into property and the pro-vision of services and issues of public functions.

Khan: Afghanistan jurisdiction has shown signs of stability and consisten-cy in the regulatory framework on Hu-man Resources recently. Ever since the promulgation of the Labour Law 2008, the Ministry of Labour, Social Affairs, Martyrs and Disabled (the “MOL”) to complement the already existing legal framework in place have issued multi-ple Regulations.

The MOL issues Regulations regularly and ensures compliance to the same through requesting entities to submit compliance reports with the MOL. The latest regulation issued by the MOL is on the Privileges of Health Staff at Risk

In our Labour & Employment 2016 Roundtable we spoke with six experts from around the world. We discover which jurisdiction has record low unemployment, which country has seen a fall in private sector wage growth and which labour market condition is influenced by anti-terrorist operation. Other highlighted topics include: The impact of foreign workforce on regulation and difficulties surrounding trends towards an inactive & disengaged workforce including the opinion that social media is undercutting productivity. Featured countries are: Portugal, United Kingdom, Ukraine, Afghanistan & Australia.

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Khan: The labour market in Afghani-stan has witnessed a downfall in the past three years which the Ministry of Commerce and Industries recently at-tributed to the following reasons ulti-mately leading to low economic activ-ity: • Insecurity;• Limited access to financial resourc-es;• Corruption; and • Lack of investment and sales mar-ket.

Moreover, small and medium enter-prises/companies have seen a decline in business due to low economic ac-tivity and ultimately leading low de-mand of labour. Large enterprises on the other hand do not cater for the needs of a growing labour market due to their short number and specialised work force demand.

Hor: Recently, the Australian labour market has experienced a fall in private sector wages growth, consistent with relatively subdued labour market con-ditions. A report on trends in enter-prise bargaining for the 2nd quarter in 2015 recorded a fall in the percentage of average annualised wage increase under federal enterprise agreements. The Wages Price Index compiled by the Australian Bureau of Statistics also

vide official Gazette No. 1172.

Hor: After much debate and delay, the Government’s Fair Work Amendment Bill 2014 (Cth) finally passed both houses of Parliament on 11 November 2015. Amendments in a number of ar-eas were passed affecting the approval process for the negotiating of single-enterprise greenfields agreements, the timing of application for ballots for protected industrial action, and the handling of requests for extensions to unpaid parental leave. Proposed amendments on leave accruals, right of entry, individual flexibility arrange-ments and transfer of business provi-sions were not supported. However, a further Bill pursuing these changes has been tabled in Parliament, but is unlikely to pass given their earlier re-jection. The overall structure of the national workplace relations framework has been the subject of a public inquiry conducted by the Australian Productiv-ity Commission, with the final report from this inquiry scheduled for release shortly, which may lead to a further round of legislative changes.

Voynarovska: Ukraine is looking for-ward to the new Labour Code to be adopted. Namely, on 5 November

2015 the Draft Labour Code of Ukraine was passed in the first reading by the Verkhovna Rada.

The new Labour Code will provide for some previously unknown mecha-nisms such as monitoring of employ-ees, background checks, suspension of employment, grounds for dismissal of single mothers, termination of em-ployment in case of extraordinary cir-cumstances (war, catastrophe, act of God, epidemic, etc.), termination of employment in case of disclosure of confidential information, possibility to reduce a notification period.

This new Labour Code, if passed in the second reading, will give more space to the employers by equalising their interests with the interests of employ-ees.

2. Can you outline the current la-bour market conditions in your juris-diction?

Afonso: The labour market conditions are slowly improving in Portugal since the launch of the financial assistance programme with the European Com-mission (EC), the European Central Bank (ECB) and the International Mon-etary Fund (IMF) in 2011, but not at the desirable pace.

The trend of rising unemployment has slowed down, and even abated in 2015, but such recovery is shown neither sta-ble nor constant. The unemployment rates are still high, particularly in what concerns to youth unemployment (cur-rently above the remaining countries of the OECD), which are in a growing tendency to emigrate.

The array of support measures to stimulate economic and employment growth has not only been shown un-satisfactory but was also weakened by the fiscal consolidation measures that were implemented concomitantly.

Ries: Unemployment is at a record low in England since the 2008 crisis. The job market is very fluid as recent leg-islation has made it easier to hire and fire.

Lawson: The labour market in the re-gion in which I am physically based, be-ing the south east of England, is good. Indeed employer clients struggle far more to recruit than employees do to find new roles. The lead in time from shortlisting to final decision, however, is often a fairly lengthy process due to the importance on ensuring the right fit from both a skills and workstyle per-spective.

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Hor: Globalisation has had an adverse impact on certain sectors of the Aus-tralian labour market that have had difficulty remaining competitive in the global market, particularly in the manu-facturing area. This has led to a steady decline in job opportunities in these sectors and the need to redirect such labour to other sectors of the Austral-ian labour market.

Globalisation has also facilitated the performance of work in locations geo-graphically separate from where Aus-tralian businesses are based, with the effect that this work may be under-taken beyond the reach of Australian labour laws where there is not a suffi-cient connection to the Australian sys-tem of regulation.

In addition, the enhanced mobility of labour and the competition for skilled labour globally has seen the develop-ment of a more extensive skilled migra-tion scheme in Australia to allow busi-nesses to build their global operations.

Voynarovska: The “Soviet” Labour Code and unfair misbalance of employ-ees’ and employers’ interests result-ed in a low investment attractiveness of Ukraine. Bearing this in mind and taking into account the recent signing of the EU-Ukraine Association Agree-

shows a fall in private sector hourly rates of pay. The unemployment rate in Austral-ia has remained relatively steady at around 6%, and the participation rate at 65%. Increases in employment are evidence in both full-time and part-time positions.

Savchuk: The Ukrainian labour mar-ket is currently regulated by the “Sovi-et” Labour Code (1971), which causes an unfair misbalance in relations be-tween the employer and the employ-ee – with a significant bias towards the latter. The employer lacks efficient in-struments for employee control (i.e. background checks, surveillance by technical means, work correspond-ence checks, etc.), as most of them are considered unlawful as impairing em-ployees’ rights. In addition, the Labour Code (1971) provides for an exclusive list of dismissal grounds, most of which are very formal and hardly enforceable (especially against pregnant women, single mothers, members of unions, etc.).

The current labour market conditions are also influenced by the on-going an-ti-terrorist operation (ATO), which has been lasting for one and a half years in the East of Ukraine. In particular,

it frequently causes redundancies in companies operating in the said area. Moreover, the ATO put several addi-tional obligations on employers, such as retention of the job and the monthly compensation of an average salary of employees called for military service.

3. What impact has globalisation had on labour and employment trends?

Afonso: Globalisation has had a posi-tive impact on labour and employment trends in Portugal, first and foremost, because it enabled the approximation of member states’ legislation in vari-ous employment matters of high im-portance.

It further enabled the transfer of em-ployees within multinational compa-nies that have, in the meantime, set up subsidiaries in Portugal. In addi-tion, globalisation has also played an important role in the establishment of foreign employees’ rights, which have specific national rules in force for their protection.

Notwithstanding the above, taking into account the size and relative im-portance of the Portuguese economy, we must also point out that globalisa-tion recently favoured the closure and delocalisation of multinational subsidi-

aries to other countries.

Khan: Afghanistan in the past decade has seen multiple trends in the labour market due to globalisation. Due to non-availability of technical expertise in the local market initially after the in-troduction of the interim Government in 2003, the labour market in Afghani-stan mostly consisted of expats. The local labour was unable to make its way to positions suitable for the developing economy due to lack of ready human resource and technical expertise. The lack of suitable work force in different sectors of Afghanistan can purely be attributed to long years of war in Af-ghanistan. However, recently foreign employments have dropped gradually due to the Afghan First Policy. Foreign employment in Afghanistan initially left a remarkable impact on the local market such as:

• Local work force strived to devel-op themselves through education and capacity building;• Inculcation of global trends in local labour market through the foreign em-ployed experts and technically sound labour force;• Introduction of global corporate governance trends to medium and large enterprises;• Flow of investment in Afghanistan.

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maritime, manufacturing and mining industries.

5. Does the current regulatory sys-tem offer adequate protection against discrimination in the workplace?

Afonso: Yes. In addition to being ex-pressly provided for in the Portuguese Constitution and in the Portuguese La-bour Code, there are also active meas-ures that must be complied with by the employer, as to guarantee the obser-vance of this principle, such as:• The mandatory display, in a suita-ble place, of the employees’ rights and duties regarding equality and non-dis-crimination in the workplace;• The need to ensure equal treat-ment in the selection criteria and re-cruitment conditions; in training; voca-tional retraining; pay and other wage components; promotion and career progression; selection criteria for dis-missal; collective representation struc-tures; • The need of a prior positive opin-ion from the Commission for Equality in Labour and Employment (CITE) for the dismissal of a pregnant or breast-feeding employee.CITE is a collegial body, existent since 1979, which ensures equality between men and women in the workplace, pro-tection in parenthood and the concilia-

ment, the Ukrainian Parliament and Government are trying to implement legislative changes aimed at offering foreign investors more opportunities to protect their businesses. Thus, in 2014 the Labour Code of Ukraine was amended and the company owners were granted a right to dismiss compa-ny’s officers without any prior notice and without explaining a reason of such termination. This gave business own-ers an opportunity to respond faster to any business environment changes or unfair actions of company manage-ment.

4. Are you experiencing any particu-lar trends in disputes and conflicts in the workplace?

Ries: Employees usually require two years’ service before they can raise an unfair dismissal claim. There are a number of exceptions to this qualifying service requirement. However, in most cases, provided there is no discrimina-tory reason underpinning the decision, it will very often be possible to dismiss an employee with less than two years’ service without any significant proce-dure being followed. Having said that, employers should still, as far as possi-ble, take into account the procedural recommendations in the ACAS Code of Disciplinary and Grievance Procedures.

Probationary periods are a useful way to monitor a new employee’s perfor-mance and, in most cases, an employ-er can terminate the employment re-lationship, relatively easily, on shorter notice (minimum one week) during or at the end of the probationary period. The contract should also provide for a right to extend the probationary pe-riod for a further period of time, such as three months, with a view to flag-ging up to the employee that all is not well.

Lawson: There is evidence of some in-crease in awareness in SME’s of the ex-istence and benefits of workplace me-diation but there is still quite a way to go in terms of promoting this form of ADR.

There seems to be a real issue with employers struggling with inactive and disengaged employees which seem to have come from the improvement in the job market in the area in which I am physically based. This is also caused by the position we are in with regard to use of technology for personal com-munications, and a widespread fixa-tion with social media which is a real distraction for many in the workplace and too frequently undercuts produc-tivity.

Khan: Disputes and conflicts in work-place is a global phenomenon, the law has clearly provided for ample forums, which benefit both the employer and the employee in order to settle dis-putes and conflicts. The law has pro-vided for three mandatory forums to settle disputes which include:• Interdepartmental Dispute Reso-lution; • Dispute Resolution Commission; and • Court.

Due to lack of proper implementation and compliance on part of the organisa-tion/employer, the employees normal-ly refer their organisational disputes and conflicts to the Attorney General office and the Hakook (Rights) Depart-ment for the rights and remedies avail-able to them under the labour law.

Hor: According to the Australian Bureau of Statistics data [ABS 6321.0.55.001 - Industrial Disputes, Australia, Jun 2015] there has been a decline in the number of industrial disputes and in the working days lost due to indus-trial disputation in the last year. The Fair Work Commission recorded in its Annual Report that dispute applica-tions fell by 13.6% in 2014–15. Sectors where disputes are still evident include public sector employment and in the

http://www.acas.org.uk/index.aspx?articleid=2174

http://www.acas.org.uk/index.aspx?articleid=2174

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about a wrongdoing to the attention of their employers or a relevant organi-sation, they are protected in certain circumstances under the Public Inter-est Disclosure Act 1998. The law that protects whistleblowers is for the pub-lic interest – so people can speak out if they find malpractice in an organi-sation. If workers cannot go to their employer with the disclosure first they should contact a prescribed person or body.

If workers are dismissed because of whistleblowing their dismissal is auto-matically considered ‘unfair’ without the need for the two years continuous employment requirement as in ordi-nary unfair dismissal claims. There is also no cap on the compensation that may be awarded.

Workers who ‘blow the whistle’ on wrongdoing in the workplace can claim unfair dismissal if they are dismissed or victimised for doing so. An employee’s dismissal (or selection for redundancy) is automatically considered ‘unfair’ if it is wholly or mainly for making a pro-tected disclosure. If a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith, it has the power to reduce compensation by up to 25%.

tion between work, family and private life.

Ries: The Equality Act 2010 provides that it is unlawful to discriminate against an employee on the basis of age, sex, race, disability, marriage and civil partnership, sexual orientation, gender reassignment, pregnancy and maternity, and religion or belief. It is also unlawful to offer different and less favourable pay and conditions where women and men are doing the equal work (i.e. like work or work rated as equivalent or work of equal value).

It is also unlawful to discriminate against someone on the basis that they work part-time or on the basis that they have a fixed-term contract.

There is no qualifying length of em-ployment, such as with unfair dismiss-al, for an employee, or a job applicant, to be able to make a claim that they have been discriminated against.

Lawson: The law offers good formal protection from discrimination but ultimately there remain areas of con-cern where the law does not allow a true framework for day to day protec-tion in a tangible way. The two issues that remain poorly dealt with in the workplace, and therefore ultimately

result in discrimination that is difficult to pin down in terms of bring claims, are mental disabilities and HIV/AIDs.

Khan: Yes. According to article 9 of the labour law, any discrimination, in recruiting, payment of wages and enti-tlements, profession, field or specialty, education right and Social Security, is prohibited.

Hor: The Fair Work Act 2009 (Cth), to-gether with federal state and territory anti-discrimination laws, prohibits dis-criminatory conduct at all stages of the employment relationship from recruit-ment to termination. While the attrib-utes covered in each legislative scheme varies, the specific protected attributes in the Fair Work Act include:• race• colour• sex• sexual preference• age• physical or mental disability• marital status• family or carer’s responsibilities• pregnancy• religion• political opinion• national extraction• social origin.

The adequacy of the protection is af-

fected by the complexity of the inter-secting legislative regimes and con-cerns regarding access to justice for in-dividual complainants in pursing court proceedings.

Voynarovska: The current regulatory system does not offer adequate pro-tection against discrimination in the workplace. The existing legal provi-sions covering discrimination in the workplace are rather formal and hard-ly enforceable. It is evidenced by rare and vague court decisions regarding the recognition of discrimination.

Although, the Verkhovna Rada adopt-ed the new Law prohibiting discrimina-tion at the workplace, the proper en-forcement mechanisms have not been proposed yet. Moreover, this new Law has raised a huge public concern, as it grants protection against discrimina-tion at the workplace with no regard to skin colour, gender identity, sexual orientation, ethnic origin, HIV status (which the media referred to as the “anti-gay discrimination law”).

6. Can you detail the basic law on the public interest disclosure legisla-tion and how it is a rapidly changing area of law?

Ries: When workers bring information

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voked in a labour dispute.

7. Are there any effective employee retention strategies an organisation can implement?

Afonso: Some of the most effective employee retention strategies are: • the implementation/existence of a career plan within the company; • the granting of benefits (such as, company car, health insurance, restau-rant and schooling vouchers; • access and support to external training); and• well-paid work.

In addition to the foregoing, the Por-tuguese employment law also enables the parties to agree on a permanence covenant, where the employee under-takes not to unilaterally terminate the employment contract, for a period not exceeding three years, when the em-ployer has spent a considerable amount of money in his/her professional train-ing. Notwithstanding, the employee may release himself/herself from this obligation, through the payment of the correspondent amount, directly to the employer.

Ries: To create and maintain an attrac-tive workplace involves developing a corporate mission and culture, and cor-

Lawson: We have over the last eight or so years seen the pendulum swing in this area of law from narrow remit to far-reaching application, and I believe we are now at a more moderate posi-tion. In summary, the legislation pro-tects employers and workers from be-ing dismissed or subject to detriment because they have made a protected disclosure. To be protected informa-tion disclosed must, in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring or is likely to occur: breach of any legal obligation, miscarriage of justice, danger to the health and safety of any individual, damage to the envi-ronment or the deliberate concealing of information about any of the above.

The worker must also reasonably be-lieve that the disclosure is “in the pub-lic interest”. The disclosure no longer needs to be made in good faith which was an interesting recent amendment which generally my clients find per-plexing.

Khan: Article 50 of the Constitution of the Islamic Republic of Afghanistan gives right of access to information from state departments in accordance with the provisions of the law. The right conferred to the citizens in Article 50 has no limitation except if the same

might be detrimental to public rights and public security.

In view of the above, the following leg-islations are in place with regards to public interest disclosure: • Law on Access to Information, Of-ficial Gazette No. 1156, dated 1393 (Shamsi Calendar);• Government Cases Law, Official Gazette No. 1115, dated 1392 (Shamsi Calendar).

Hor: The Public Interest Disclosure Act 2013 (Cth) commenced on 15 January 2014. Its objects are: • to promote the integrity and ac-countability of the Commonwealth public sector; • to encourage and facilitate the making of public interest disclosures by public officials; • to ensure that public officials who make public interest disclosures are supported and are protected from ad-verse consequences relating to the dis-closures; and• to ensure that disclosures by pub-lic officials are properly investigated and dealt with.

The Act provides that an individual “whistleblower” who makes a public interest disclosure will not be subject to any civil, criminal or administrative

liability (including disciplinary action) for making the public interest disclo-sure and that no contractual or other remedy may be enforced or exercised against the individual on the basis of the public interest disclosure.

As a new scheme, its operation and the oversight role of the Commonwealth Ombudsman and the Inspector Gen-eral of Intelligence and Security (IGIS) are matters of on-going interest. Some states and territories in Australia have comparable legislation, or are contem-plating such schemes.

Savchuk: The statutory provisions on the public interest disclosure were in-troduced in 2014 by the Law of Ukraine “On Prevention of Corruption”. This Law protects whistleblowers from dismissal, disciplining or other unfair treatment (i.e. transfer, attestation, la-bour conditions change, salary reduc-tion, etc.).

The National Agency for Prevention of Corruption is responsible for the le-gal protection of whistleblowers and it shall participate in court hearings dealing with the protection of whistle-blowers. However, this Agency has not started its work yet. Hence, we are not aware of any situations where the law on public interest disclosure was in-

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be an appropriate amount in respect of the agreed period (which can be up to the maximum of three years).

Ries: An employer may seek to pro-tect its confidential information both during employment and after the em-ployment ends through restrictive cov-enants. Having such clauses set out in the contract from the outset may help to deter employees from joining com-petitors and may warn off potential new employers.

A restrictive covenant is typically a clause in a contract which prohibits an employee from competing with his ex-employer for a certain period after the employee has left the business, or prevents the ex-employee from solic-iting or dealing with customers of the business by using knowledge of those customers gained during his prior em-ployment.

The starting point for any such post-termination restriction is that it is void on the grounds that it is a restraint of trade and contrary to public policy. However, if the organisation can con-vince a court that the covenant is:• designed to protect his legitimate business interests; and• that it extends no further than is reasonably necessary to protect those

responding value system; but also in-sisting on a safe working environment and creating clear, logical and consist-ent operating policies and procedures.

It is also crucial to promote a culture of openness and shared information, where employees know where the company is going and what it will look like in the future. How is the company doing financially? Where does it stand in the marketplace?

Employees also need to know how their specific jobs fit into the grand scheme of things and what they can do to help the organisation get to where it wants to go. It is important therefor to oper-ate a transparent culture where man-agers share information.

Lawson: A positive and stimulating of-fice environment is in my experience the best way to retain staff. Such an environment is built on communica-tion, variety and a fair career path. The importance of training and team build-ing events should not be underesti-mated. An open door policy on behalf of senior management is also impor-tant as is an HR function which can ask the key and sometimes difficult ques-tions of business owners, managers and staff. Obviously competitive pay is also key and feeds into the general at-

titude of employees towards their em-ployees. Pension schemes that offer above minimum are also of mounting importance. Share schemes seem re-cently to mainly work to retain senior employees with an understanding of the share markets.

Khan: The laws and regulations being silent on a specific employee retention scheme/strategy has provided for au-tonomy for any organisation to regulate employee retention schemes through their internal policies and manuals. Furthermore, the Labour Law has also provided ample opportunity to the employee and the employer to nego-tiate and agree upon the terms of the contract of employment. Upon agree-ment of the parties, employee reten-tion scheme can be agreed upon.

Hor: Clear performance and reward systems create an environment where the prospect of staff retention can be maximised.

In the case of executive and senior management employment, one effec-tive retention strategy is the way in which remuneration can be structured to include a substantial component of delayed performance-related compen-sation in the form of long-term incen-tive (LTIs) plans. While there is no set

practice as to the typical length for de-ferring the entitlement to payments or share options, vesting periods of be-tween one and three years are com-mon. Some plans also provide for staged entitlements in tranches linked to the meeting of performance targets over a range of time periods. Other retention strategies include mechanism for facilitating flexible work arrangements that allow employees to meet carer responsibilities or attend to health matters involve their own health or those of family members or associates.

8. How can an organisation protect their business against departing em-ployees?

Afonso: There are a couple of actions that may be taken by an organisation to protect their business against de-parting employees, such as the written agreement on a non-compete, a con-fidentiality and/or a non-solicitation covenant.

The flip side (only for the non-compete agreement) is the obligation of com-pensation, by the employer, for the restriction of the employee’s right to work. The Portuguese law does not establish any minimum or maximum amounts in this regard, but it should

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ing of non-mandatory benefits (pre-miums, bonuses and any other regular benefits), in addition to the base remu-neration, should be expressly foreseen in writing and acknowledged by the employees, under penalty of not being able to be unilaterally removed by the employer.

Ries: A well drafted employment con-tract provides the parties with certain-ty about their respective rights and obligations over the life of the con-tract, and after it has been terminated. The contract should address the basic terms of employment (such as wages and benefits, bonus, hours, holidays), but also confidentiality, intellectual property protection, non-compete and non-solicitation provisions during and after the employment. Employers should pay attention to the length of notice of termination they wish to im-pose and consider garden leave provi-sions (giving the employer to request that the employee stays away from the office, from customers and from em-ployees during the notice period) and pay in lieu of notice clauses.

Khan: In addition to any clauses be-ing negotiated and agreed upon by the parties to the contract of employment, requisites laid down in the labour law has to be fulfilled to complete the con-

interests then it will be upheld and en-forced.

A restrictive covenant clause may be enforced to protect a legitimate busi-ness interest – for example, client con-nections, confidential information or a stable workforce – and not simply to stifle or prevent competition.

Lawson: While restrictive covenants are the fall-back contractual protection that are still worth including in con-tracts for client-facing and very senior staff, they remain risky and expensive to enforce. Garden Leave is a prefera-ble contractual method of keeping de-parting employees out of the market for a period. Formal letters to the new employers of ex-employees who may be breaching or expected to breach covenants is also worthwhile. Howev-er the best method to protect the busi-ness is to be pro-active with clients or customers in terms of making contact with them once an employee is leaving to ensure the client or customer is nur-tured and the relationship re-enforced. It is better to spend the time, effort and cost on the positive steps with direct respect to the clients or customers.

Khan: As provided in response to ques-tion No. 7 above, an organisation may protect its business from a departing

employee through inclusion of non-compete clauses in the contract of em-ployment, which can be negotiated by the parties signing it. The Labour Law and regulations do not provide for any protection to an organisation from a departing employee.

Hor: A common way of protecting a business from the post-employment conduct of departing employees is through restrictive covenants in the contract of employment. Such cove-nants will be enforced where an em-ployer can show that they have a le-gitimate interest to protect, and the restraint imposed is no more than rea-sonably necessary to protect that in-terest. A legitimate interest includes goodwill, protection against soliciting of other employees or the release of confidential information and trade se-crets.

There are three common types of re-straints:• Non-solicitation (prevents the em-ployee from pursuing clients, custom-ers or suppliers they had dealings with during their employment); • Non-dealing (prevents the deal-ing with or doing business with any-one who has a business connection with the employer irrespective of who makes the approach); and

• Non-compete (prohibit employees from approaching clients, working for a competitor or establishing their own business during the restraint period).

Many restrictive covenants are now drafted as cascading restraints with re-ducing restraint periods and geograph-ic scope. This allows any restraint de-termined to be too wide by a court to be severed, and the remaining more limited but valid restraint to be en-forced.

9. What should be included in a well-drafted employment contract?

Afonso: The Portuguese Labour Code and other relevant employment regu-lations expressly state which referenc-es are mandatory to include in an em-ployment contract.

Depending on the perspective from which we analyse this question, there are other matters, aspects and/or al-lusions that should also be included, as to best suit and protect the parties’ needs (with respect to pay, organisa-tion of working time, exclusivity obli-gations and non-competition clauses, among others).

For instance, regarding pay, the terms and conditions underlying the grant-

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Hor: The specific use of zero-hour con-tracts that require a worker to be avail-able, but with no specification of hours of work, is not as common in Australia as it may be in other jurisdictions.

Working hours are regulated in Aus-tralia through the National Employ-ment Standards in the Fair Work Act 2009 (Cth) and through the terms of awards and enterprise agreements. These generally specify ordinary hours of work for full time and part-time em-ployees, and maximum and minimum shift length.

The type of flexibility that zero con-tracts seek to attain is often achieved in the Australian system through cas-ual employment contracts that specify an indicative range of hours of work, but with the contract indicating that the employer is not under any obliga-tion to provide work. However, once a casual employee is engaged for a par-ticular shift, a minimum shift length usually applies.

11. Can you outline the effectiveness of methods providing an alternative to redundancy, and in a worst-case sce-nario what selection criteria should be applied to identify the employees who will be at risk?Afonso: There are several mechanisms

tract of employment. They include:• Written Form;• Definite period [fixed term] of one year renewable for the same initial term upon agreement of the parties;• Job Description;• Absence of legal obstacles against work;• Wage, rights and privileges of Em-ployee;• Timing and hours of Work;• Leave [entitlements];• Workplace or unit where the em-ployee will engage in work; and• Effective date.

Hor: A well-drafted employment con-tract should operate as an entire con-tract, without the need for recourse to extraneous materials, such as pre-contractual communications. It should include:• terms setting out the nature of the position and the duties involved; • hours of work; • remuneration structure; • any performance indicators and review mechanisms; • discretionary entitlements such as bonuses and incentives; • termination and notice provisions; and • obligations regarding confidential-ity and restrictive covenants.

Additional terms may also be implied into the employment of contract by fact, custom or law. Despite the par-ties not having expressly agreed to such terms, they will nonetheless form part of the contract.

10. Can you talk us through the iden-tified issues with zero-hour contracts?

Afonso: Zero-hour contracts are not expressly foreseen in Portugal. Its le-gality could be doubtful, as, within this type of contract, the employer typi-cally states that it has no obligation to provide work for the employee and, in Portugal, it is legally foreseen that the employee is entitled to be provid-ed with effective work (otherwise the employee may terminate the employ-ment contract with just cause and re-quest an indemnification for damage to property and personal injuries).

Ries: Under a zero-hours contract an individual is given work on a casual ba-sis whenever there is work available. There are no guaranteed hours and at times there may be no work for the in-dividual at all. It is not difficult to see why zero-hours contracts are favoured by some businesses. The position was made worse for workers where the zero-hours contract included an exclu-sion clause preventing the individual

from working elsewhere even when no work is offered to them during certain times.

Exclusivity clauses in zero-hours con-tracts are unenforceable with effect from 26 May (section 153 of the Small Business, Enterprise and Employment Act 2015). This means that it is no long-er possible for a zero-hours contract to prevent the employee or worker from working for someone else.

Lawson: Zero-hour contracts have been in use widely for a long time and are therefore not a new phenomenon. The flexibility they provide does work well for many workers, as well as for businesses. It is clear however that there is also room for abuse by busi-nesses. A main area of concern is when a zero-hour contract requires that the zero-hour worker works exclusively for the one business. The recent in-troduction of legislation meaning such exclusivity clauses are not enforceable is therefore welcome. However the reality is that zero-hours workers who often turn down work due to working elsewhere are less likely to be offered work if not seen as reliable.

Khan: There is no concept in place with regards to zero-hour contracts in Afghanistan Laws.

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ployer of the obligation to pay redun-dancy entitlements. The feasibility of the alternative offered is judged on a range of factors including the nature of any available position, the qualifica-tions required to perform the job, the employee’s skills, qualifications and ex-perience, the location of the job in re-lation to the employee’s residence and the remuneration which is offered.

In the case of redundancy where there is to be a reduction in the number of positions for which a range of individu-als are qualified, a process should be undertaken to determine which indi-viduals are best suited to the remaining positions. The selection criteria needs to be tailored to the skills and compe-tencies of the positions in question. A matrix of skills and competencies is of-ten constructed that includes factors such as qualifications, demonstrated performance, and past conduct, as well as soft skills such as teamwork, com-munication capabilities, and openness to change. From a procedural fairness point of view it is advisable that indi-vidual employees selected for redun-dancy are given an opportunity to re-spond to the initial assessment before any final decision is made.

A genuine redundancy situation will preclude an unfair dismissal applica-

to which the employer may resort in order to legally and efficiently reduce its fixed costs with employees and avoid redundancy processes (e.g., lay-off, suppression of wage components, change to part-time work, reduction of the professional category).

To the extent that these mechanisms involve a change in the employees’ provision of work, we note that some of them may not be unilaterally exe-cuted by the employer and will require a written agreement between the par-ties, as to be considered lawful.

Such alternative measures may arise apart or within a collective dismissal procedure. In the event that no alter-native measure is agreed between the parties (worst-case scenario within a collective dismissal procedure), the Por-tuguese Labour Code expressly foresees that the criteria to be followed by the employer for the selection of employ-ees must (only) be objective, relevant and non-discriminatory criteria.

Ries: Before embarking on a redun-dancy consultation process, it is worth considering alternative options to use or combine to reduce redundancies, or even prevent them altogether. Re-ducing or ending overtime, stopping recruiting and retrain staff, stopping

using contractors/casual staff/agency workers.

• Offering flexible working – employ-ees are more productive with a better work-life balance, so offering part-time working, job shares makes sense. • Offering voluntary redundancy/early retirement.• Temporarily lay off – this is where there is a temporary lack of work avail-able.• Temporarily placing employees on short-time working.• Changing employment contracts and seeking to agree new terms and conditions (such as wages, hours and duties).

If the above options are not available, employers should consult affected em-ployees regarding redundancy selec-tion criteria. The criteria must be con-sistently applied and be objective, fair and consistent. Basing any selection on skills or qualification will help to keep a balanced workforce appropriate to the organisation’s future needs.

Examples of selection criteria are:• attendance record • disciplinary record • skills or experience.• standard of work performance• aptitude for work

• Formal qualifications

Lawson: A minority of employees gen-erally support the idea of reduced hours and many prefer to take redun-dancy and seek comparable hours and roles externally. The best alternative to redundancy remains redeployment into suitable vacancies. Where this is not possible, objective criteria based around achievement of defined and if possible objective targets are advis-able. Where this is not possible, use of appraisal ratings is helpful. This is another reason it is vital to keep up to date with a defined appraisal system. While a clean disciplinary record is also important, I would generally advise against too much reliance on length of service or attendance records.

Khan: Due to the prevailing situation in Afghanistan, there is no alterna-tive remedy available to an employee against redundancy. The law requires an employer to look into the possibility of providing a substitute work within the organisation in case of redundancy but this is left at the sole discretion of the employer.

Hor: Redeployment within the em-ployer’s enterprise or with an associ-ated entity is a feasible alternative to redundancy. It can also relieve an em-

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• Regulation on Compensation of Labour in loss of health;• Regulation on creation and opera-tion of centres for Vocational Training.

Hor: A key focus for Australian busi-nesses in the coming year is the idea of operating in an agile and innovative commercial environment. Many em-ployers are looking for creative ways of achieving innovation and flexibility, and want a regulatory framework that can facilitate such outcomes. There are likely to be further legislative changes following the release of the Austral-ian Productivity Commission’s report, focused on creating such an environ-ment and enhancing productivity and greater flexibility in the Australian la-bour market.

Savchuk: Taking into account intensi-fied preparation of the new Labour Code of Ukraine, we expect it to be adopted by the Verkhovna Rada in late spring 2016. This document, if adopt-ed, will equalise employees’ and em-ployers’ interests and will introduce a great many innovations to the current labour regulations. Thus, the new La-bour Code introduces written employ-ment agreements for all employees, possibility to suspend employment, monitoring of employees, background checks, etc.

tion, provided any obligations in the applicable award or agreement, in-cluding consultation requirements, are fulfilled.

Voynarovska: An alternative employ-ment termination method to redun-dancy is negotiations on termination by mutual consent. Employees are likely to conclude termination agreements if the amount offered to them will cover one-month severance payment and social benefits for unemployment (ap-prox. €600) they would receive if ter-minated by redundancy.

As to the selection criteria, there is a statutory requirement to give priority to employees with higher qualifica-tions and better performance. Where employees have equal qualifications and performance, priority would be given to employees who:• have two or more dependants;• are the sole breadwinner in the family;• have long and consistent work ex-perience in the organisation;• study at certain educational insti-tutions while working;• are combatants or disabled veter-ans;• are inventors or industrial design-ers;• suffer from industrial injuries or

occupational diseases; • have been deported and returned to Ukraine within five years; and• were military service members within the last two years.

12. What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?

Ries: 2016 will see more reporting re-quirements put on larger organisations. Employers who employ more than 250 employees are bracing themselves for an obligation to report on the gender pay gap within their organisation.

The Modern Slavery Act 2015, in force since October, will require organisa-tions with an annual turnover above £36 million and which carry on a busi-ness or part of a business in the UK, to disclose what activity they are under-taking to eliminate slavery and traffick-ing from their supply chains and their own business for each financial year of the organisation.

Lawson: The substantial increase in the minimum wage for adults mapped out over the next few years, and name change to National Living Wage, with an increase of £1 per hour in the space of a year. While the principal is noble

and respected, unfortunately the costs increase will be significant for many or-ganisations, and in particularly organi-sations already suffering the squeeze due to severe reductions over time in government funding and the introduc-tion of auto-enrolment pensions, in-cluding charities and local community interest organisations, care homes and other medical facilities and care pro-viders.

A change I would like to see if the re-quirement of mediation internally in the workplace as part of or as a com-plete alternative to a formal grievance process.

Khan: The MOL has shown some seri-ousness and resolve towards the im-plementation of the Labour Law and regulations in place through requiring employer to comply and report back to the MOL in the form of compliance questionnaires. It is a matter of time and willingness of the MOL and em-ployers towards a steady implementa-tion of laws to regulate and facilitate labour markets.

Currently the following regulations are expected to come into force in near fu-ture:• Regulation on the Supreme Coun-cil of Labour;

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Moreover, taking into account the signing of the EU-Ukraine Association Agree-ment, we expect that the Ukrainian labour law will be gradually harmonised with the EU labour principles and laws. Legislation on placement of foreigners will experience further liberalisation.

labour & employment law 2016 - vasil kisil & partners€¦ · usana coordinates cms rpa’...

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