Cross border advice and transactions

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It is widely proclaimed that we are in the midst of the “Fourth Industrial Revolution” (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator’s view you believe.

For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the ‘gigification’ of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.

Regional trends that are responding to the 4IR

The 4IR is shaping workplace laws. Working across regions we see examples that point to trends in laws responding to the new world of work arrangements such as non-traditional labour models. As an example, recent amendments to the Occupational Safety and Health Act in Korea have expanded the scope of statutory protections to “persons providing labour” (as opposed to “employees”) and introduce an obligation on franchisors to take preventive measures for workplace accidents suffered by franchisees and their workers.

Positive regional trends can be seen in how workers are protected by existing laws. The latest amendment to the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases on 4 November 2017 and recent cases indicate a trend in Beijing and Shanghai that the enforcement of health and safety at work is in focus, more comprehensive and increasingly strict.

Debates on how we face the future

Australian Governments are grappling with the challenge of laws that are responsive to the 4IR. A key recommendation from the 2018 review of the model Work Health and Safety Laws is that Safe Work Australia develop criteria to continuously assess new and emerging business models, industries and hazards to identify if there is a need for legislative change, new model WHS Regulations or model Codes.

Laws continue to be tested against the explosion in reporting of workplace sexual harassment. A number of unions are calling for WHS laws to specifically include sexual harassment as a risk that must be eliminated or minimised by duty holders. Regulators are encouraging anonymous whistleblowing to facilitate investigation.

The battle lines have also been drawn for the Federal election later in the year, with the Australian Labor Party committing to a wide suite of industrial and safety changes including a commitment to support national industrial manslaughter laws – a position supported by the 2018 review of the model laws.

Rising issue of workplace psychological health – a focus for regulators

In Victoria, recent presentations from WorkSafe have detailed plans for its inspectors to be trained to assess workplace psychological health. We can expect more enforcement action in this space.

Exploring ‘megatrends’ for the future will help us prepare for change

It is more important than ever to understand the risks associated with the constant change in workplaces. The Workplace Safety Futures report commissioned by Safe Work Australia explores the six megatrends predicted to re-shape workplace health and safety – including the gig economy, the blurred lines of work and home life and workplace psychological health. It’s a highly recommended read.

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In the last five years, with the development of information technology and mobile devices, the distinction between being “at work” and “off work” has been profoundly altered. Working time is no longer confined to being in an office and working days are both more intense and infinitely extendable, making monitoring working times even more complex.Switching off

Coupled with a global economy, many employees feel that they are permanently connected to their work, irrespective of time zones and local laws. Continue Reading Switching off: making sense of working time laws in Europe

Statutory holiday pay should include variable pay and allowances

The European Court of Justice has recently decided in the case of Lock v British Gas Trading Ltd (Case C-539/12) that an employee should receive “normal pay” during their 5 weeks of UK statutory annual leave. “Normal pay” is not limited to base pay, but includes compensation for commission and allowances which the employee would have received had they been working during the leave.

Click here to read the full version of our recent European Employment Law Alert on this case:

http://www.seyfarth.com/publications/EA060914

What does this mean for employers?

The ECJ decision has major implications for clients with UK operations who operate variable pay programs, or pay overtime or attendance allowances. Going forward, these additional amounts may need to be included in annual leave payments and employees could also bring “back-pay” claims for extra holiday pay. UK employers may need to consider these extra annual leave costs when agreeing to extra pay elements such as variable pay, paid overtime or allowances.

Renewed focus on collective agreements

An increase in strikes in China, including recent campaigns at a number of international businesses has given new impetus to previous efforts to put in place a collective bargaining regime. Earlier this year, the Ministry of Human Resources and Social Security released a notice that, by the end of 2015, collective agreements must cover 80% of the employers in China. While the Notice does have a direct effect on employers, the expectation is that it will accelerate the trend towards compulsory collective bargaining rules in all provinces.

For more detail the full version of our recent China Employment Law Alert is available: Employers Prepare for Compulsory Collective Bargaining.

What does this mean for employers?

While Australia has a well-established collective bargaining regime, developments of this nature are always of interest. It’s possible that aspects of our system may be used in developing the new regulation in China. More importantly, clients who have operations in China should assess whether they are prepared for any new developments, and consider if their own collective bargaining experiences could assist in preparing a strategy for their China operation.