Most Read Contributor in Hong Kong, September 2016
Keywords: competition law, information,
previous episode of this series, Mayer Brown JSM discussed the
implications of sharing sensitive employment information with
competitors. After understanding these implications, Colin (a
senior HR professional) begins to panic....
Colin: We do not have any agreement to
exchange information on staff wages and bonuses, but we share
sensitive information with some of our competitors in practice. Is
this a problem?
Mayer Brown JSM: The First Conduct Rule
prohibits anti-competitive agreements as well as 'concerted
'Concerted practices' cover different forms of
coordination between competitors that fall short of an agreement.
If there is practical coordination between competitors which has an
apparent adverse effect on competition, the exchange of information
between them, either directly or indirectly, may be considered
"concerted practice" that violates the Competition
Colin: What about conferences to discuss intended pay
rise amongst employers?
Mayer Brown JSM: This will be very risky.
Exchange of information on intended pay rise reduces competitive
uncertainty. Actual figures do not necessarily have to be discussed
to violate the competition law. The mere exchange of information on
the intended percentage of pay rise would constitute a restriction
Colin: What if such exchanges were not
Mayer Brown JSM: There does not have to be a
regular or systematic basis for the exchange of information for it
to be anti-competitive. In a recent case before the European Court
of Justice involving T-Mobile, a single meeting between the
competitors where they shared their intentions in relation to
confidential remuneration information was sufficient to violate the
Colin: What if we do not exchange
information but receive information?
Mayer Brown JSM: There have been cases in
Europe where companies have violated the competition law by merely
receiving strategic information from competitors and using such
information, whether solicited or not. The European Court of
Justice has made it clear that unless a company publicly distances
itself from the information, or reports it to the relevant
competition authority, it is regarded as passively involved in the
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This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein. Please also read the JSM legal publications
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The Ministry of Human Resources has recently issued a string of new ministerial resolutions and decrees designed to address gaps in the employment regulatory framework and reinforce existing legislation...
Restraints of trade in the employment contract are quite often not given the attention they deserve until the time comes when the employer is under threat by a former employee and enforcement action is required to protect the business.
The employment tribunal system was established to provide an employee the regime in which to make a formal complaint that their employer has violated the Employment Act 2000.
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