Angola
New Rules for Health, Safety and Environment Services Providers
New Legislation Enacted
Authors: Elieser Corte Real, Partner and Head of Employment, and Nuno Gouveia, Partner and Head of Employment – Miranda Alliance – Fátima Freitas & Associados
Presidential Decree No. 179/24, August 1, 2024, approving the new Regulations on the Licensing for the Exercise of Health, Safety and Environment Services (HSE), has been published and is in effect. The new Regulations establish the rules on HSE services, their registration and authorization procedure before the General Inspectorate of Labor. The new rules are applicable to all companies that already have HSE services in operation.
The new rules require companies to issue an annual report on HSE services that must be prepared in accordance with the form defined by the Regulations. The new statute also regulates occupational medicine activities, the types of medical examinations required by law and the issuance of the respective fitness certificates, using the official forms. Companies providing HSE services that have registration and licensing applications still pending have 15 days to adapt their authorization requests to the new legal requirements.
Angola Ratifies the 2006 Maritime Labor Convention
New Legislation Enacted
Authors: Elieser Corte Real, Partner and Head of Employment, and Nuno Gouveia, Partner and Head of Employment – Miranda Alliance – Fátima Freitas & Associados
By means of Resolution no. 108/24, of September 23, 2024, Angola finally approved for ratification the 2006 the Maritime Labor Convention (MLC). The MLC marks a significant step for the national maritime sector. The Convention is a cornerstone of the global regulatory framework for ensuring high standards in maritime transport. By adopting it, Angola reinforces its commitment to safeguarding the rights of maritime employees, particularly in relation to safe, fair, and decent working conditions.
This development is a crucial milestone in the ongoing effort to improve labor standards for seafarers, aligning Angola with international best practices and enhancing the welfare and protection of maritime employees.
Australia
"Closing Loopholes No. 2" Reform Takes Effect
New Legislation Enacted
Authors: Naomi Seddon, Shareholder, and Michael Whitbread, Of Counsel – Littler
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 took effect on August 26, 2024. Changes include:
- The right of employees to "disconnect" after work hours
- A new statutory definition of employment
- A requirement to give casual employees a Casual Employment Information Statement
- Clarification of the definition of a casual employee, and the process for conversion of a casual employee to permanent employee status
- The process for dealing with impasses in collective/enterprise bargaining negotiation
- The creation of "model terms" for enterprise agreements and enhancements of the rights of "employee-like" workers such as gig workers, and more
Employers should consider the extensive reforms from end to end, particularly how the new "right to disconnect" may necessitate changes to working hours practices. Independent contracting arrangements should be reviewed to consider the new definition of employment. Handbooks and template contracts for casual employees should also be reviewed, and employers engaging in enterprise agreement negotiations will need to consider whether any changes to their bargaining strategy is warranted. Companies engaging labor in the "gig economy" should give close attention to the changes affecting their workforce.
Sexual Harassment Claimants Protected from Cost Orders in Most Cases
New Legislation Enacted
Authors: Naomi Seddon, Shareholder, and Michael Whitbread, Of Counsel – Littler
Australia's federal Parliament has passed legislation protecting sexual harassment claimants from costs orders in most circumstances. Costs orders can still be made where claims are found to have been instituted vexatiously or without reasonable cause, where a party's unreasonable act or omission caused the other to incur costs, or where a successful respondent did not have a significant advantage over an applicant in terms of power and resources.
Employers may see an uptick in claims following the reforms and should update litigation risk assessments and defense strategies accordingly.
Flawed Investigatory and Disciplinary Processes Assessing Allegations of Sexual Harassment: Lessons for Employers
Precedential Decision by Judiciary or Regulatory Agency
Authors: Naomi Seddon, Shareholder, and Michael Whitbread, Of Counsel – Littler
Australia's industrial tribunal, the Fair Work Commission, has ordered a mining company to pay a former employee one week's pay following flawed investigatory and disciplinary processes assessing allegations of sexual harassment. In this case, the employee was found to have made vulgar and sexually harassing comments and behavior toward two female members of the cleaning staff.
Although the Commission agreed that there was a valid reason for termination, it raised a number of concerns with the fairness of the employer's investigatory and disciplinary processes. It found that the employer failed to provide the employee a sufficient opportunity to respond to allegations, which should have been seven days under the employer's investigatory policy. The Commission also found that the employer rushed the investigatory process so that HR staff did not have to work over the looming long Easter holiday weekend, and that the investigator was not external or independent.
Employers should ensure that they follow their own stated investigatory processes, and that external investigators act genuinely independently. Investigations should not be rushed out of convenience. Investigatory interviews should be conducted in person, and investigatory questions should appropriately probe and test factual assertions, avoiding leading questions.
If Approved, Privacy Reform Bill Will Introduce Significant Changes
Proposed Bill or Initiative
Authors: Naomi Seddon, Shareholder, and Michael Whitbread, Of Counsel – Littler
After lengthy consultation and lobbying efforts, the Australian Government has proposed the Privacy and Other Legislation Amendment Bill 2024 (the Bill). The Bill seeks to address certain key concerns raised during consultation, including greater transparency on the use of automated decision-making by computer programs, clarifying the process for overseas transfers, and criminalizing the act of menacing or harassing an individual by exposing their personal data online (i.e., doxing). The Bill also seeks to introduce a statutory tort for serious invasions of privacy.
If the Bill passes as proposed, employers will need to review privacy policies when using automated decision tools such as resume screening software. Company policies will also warrant review, including serious privacy interference and doxing as forms of serious or gross misconduct justifying a disciplinary process. Overseas transfer mechanisms will need to be reviewed, e.g., for cloud storage of candidate and other non-employee data. Although there is no proposal at this time to remove the Privacy Act's exemption for employee records, the government intends to introduce future rounds of reform.
Probes Continue into Construction Union
Trend
Authors: Naomi Seddon, Shareholder, and Michael Whitbread, Of Counsel – Littler
Federal Attorney-General Mark Dreyfus announced in August that the Construction, Forestry and Maritime Employees Union would be taken over by an appointed administrator for at least three years after investigations led to accusations of bullying, intimidation and corruption within the union. An eminent barrister appointed by an external administrator of the union to report on alleged infiltration by outlaw motorcycle gangs reportedly found inadequate its efforts to rid itself of criminal elements. Police are also reported to be continuing investigations of alleged fraud within the industry.
While for now the concerns appear to be limited to the construction industry, employers engaging in enterprise bargaining – particularly in connection to labor hires – should pay close attention to developments and seek advice as needed.
Austria
Uncertainty of Future Economic Development Not an Objective Justification for Repeated Use of Fixed-term Employment Contracts
Precedential Decision by Judiciary or Regulatory Agency
Authors: Patricia Dasch, Associate, and Armin Popp, Associate – Littler Austria
The repeated use of fixed-term employment contracts (a series of successive fixed-term contracts) is only lawful if, in the individual case, the series of individual fixed-term contracts is justified by special social or economic reasons. The employer has the burden of assertion and proof that the reasons for the series of fixed-term employment relationships were objectively justified.
Economic reasons may also be considered as objective reasons for a series of fixed-term contracts, however, these cannot be limited to merely shifting the business risk. For example, the uncertainty of further economic development due to the poor economic situation alone is not an objective justification for a series of fixed-term employment contracts, but rather a typical business risk that the entrepreneur has to bear.
Duration of Remuneration in the Event of Termination During Sick Leave
Precedential Decision by Judiciary or Regulatory Agency
Authors: Patricia Dasch, Associate, and Armin Popp, Associate – Littler Austria
If an employee on sick leave is dismissed or if the employment relationship is terminated by mutual agreement during or because of sick leave, the entitlement to continued remuneration during the sick leave remains in force for the duration provided for by law, even after the end of the employment relationship. This entitlement is, however, limited: while no new entitlement to continued remuneration arises at the beginning of a new work year during the uninterrupted sick leave after expiration of the notice period or the end of the employment relationship, the entitlement to the continued remuneration that was not exhausted in the prior working year does not expire.
Training Cost Reimbursement Agreements Require the Signature of Both Parties
Precedential Decision by Judiciary or Regulatory Agency
Authors: Patricia Dasch, Associate, and Armin Popp, Associate – Littler Austria
Employee training costs paid by the employer can only be reclaimed based on a separate training cost reimbursement agreement. Apart from the substantive requirements of such an agreement, a training cost reimbursement agreement is also always subject to the written form requirement.
In a recent decision by the Austrian Supreme Court, it was determined that the written form requirement is only met if the agreement has been signed by both parties to the employment contract. If the training cost reimbursement agreement is signed only by the employee, the written form requirement is not met. A violation of the written form requirement renders the agreement invalid, which means that the employer cannot reclaim the training costs.
Belgium
Checklist of Required Data When Employing Foreign Workers Through Subcontracting
New Legislation Enacted
Author: Michelle Briers, Associate – Reliance | Littler
To tackle illegal employment through subcontracting more effectively, the Flemish government improved chain liability, and introduced a duty of care. According to this duty of care, companies working with subcontractors in the Flemish Region (i.e., northern region of Belgium) are required to request certain data from these subcontractors (including a copy of the passport and residence/work permit of non-EU nationals). This obligation applies as of January 1, 2025. The data should be verified through an application, which is currently being developed, before employment begins.
Changes in Regional Legislation on Working with Non-EU Nationals
New Legislation Enacted
Author: Yne Machiels, Partner – Reliance | Littler
Over the last few months, the three Belgian regions (Flanders, Brussels and Wallonia) have updated their legislation on work permits for foreign employees, which have recently entered into effect or are entering into effect in the coming weeks. Some important changes include:
- Flanders: Whereas previously an application for a single permit (combining a work and residence permit) for the "residual category" (i.e., workers who do not fall under a special category) could be filed after a labor market survey, this option is now limited to so-called shortage professions.
- Brussels is changing its salary thresholds from annual salaries to monthly salaries, only considering the "basic salary," – and no longer including end-of-year premiums or double vacation pay. For single work permits covering multiple years, it will no longer be mandatory for employees to submit wage information annually to the administration to check for compliance with the wage limits.
- Wallonia has implemented a reduced salary threshold for highly qualified staff younger than 30 years old. For the residual category, an application can be made after a labor market test, proof of which can be provided in several ways.
Brazil
New Ordinances Amend Three Regulatory Norms
New Order or Decree
Authors: Marília Nascimento Minicucci, Shareholder, and Pâmela Almeida da Silva Gordo, Senior Associate – Chiode Minicucci Advogados
On August 28, 2024, three new Ordinances were issued by the Ministry of Labor and Employment (Ordinances #1,418, 1,419 and 1,420), amending Regulatory Norms #16, 1 and 18, respectively.
It is specifically worth mentioning the changes brought by Ordinance #1,419, as they make it easier for professionals to understand and execute the Occupational Risk Management Program (PGR) within companies, in addition to expanding the approach to ergonomic and psychosocial risk factors.
Postponement of Effective Date of Ordinance Revoking Authorization for Work on Sundays and Holidays
New Order or Decree
Authors: Marília Nascimento Minicucci, Shareholder, and Pâmela Almeida da Silva Gordo, Senior Associate – Chiode Minicucci Advogados
On July 29, 2024, Ordinance #3,665/2023 had its effective date postponed to January 1, 2025, by Ordinance #1,259/2024. For reference, Ordinance #3,665/2023 revokes the permanent authorization previously granted to a few sectors of the economy (e.g., retail trade and trade in general) for work on Sundays and holidays.
New Normative Instruction Regulates the "Equal Pay Law" in Brazil
New Regulation or Official Guidance
Authors: Marília Nascimento Minicucci, Shareholder, and Pâmela Almeida da Silva Gordo, Senior Associate – Chiode Minicucci Advogados
On September 18, 2024, the Ministry of Labor and Employment issued Normative Instruction # 6/2024, regulating the "Equal Pay Law" of 2023 (Law #14,611/2023).
Among other provisions, the new Normative Instruction states that: (i) the disclosure of the pay transparency reports, which were required to be posted by companies with more than 100 employees in Brazil, must ensure that no individual employee information is made public; (ii) in the event that a Labor Inspector verifies an unjustified pay gap between men and women, the employer will be notified to present an Action Plan to Mitigate Pay Inequality within 90 days; (iii) the employer must ensure that representatives from the employees' trade union, as well as representatives of the employees in the workplace, are guaranteed the opportunity to participate in the preparation and execution of the Action Plan. The Instruction also provides for mandatory items that must be contained in the Action Plan. The Instruction became effective on the date of its publication.
Canada
Ban on Use of Replacement Workers in Strikes or Lockouts in Federally Regulated Workplaces to Become Effective on June 20, 2025
New Legislation Enacted
Authors: Rhonda Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP
On June 20, 2024, Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 ( Bill C-58) received Royal Assent. Bill C-58, which will go into effect on June 20, 2025, prohibits an employer from using the services of replacement workers to perform all or part of the duties of bargaining unit employees who are on strike or locked out in federally regulated workplaces, subject to exceptions. Once effective, the new law will influence how an employer in a federally regulated workplace conducts itself during strikes and lockouts.
Read the full article on Littler.com.
Ontario's Digital Platform Workers' Rights Act, 2022 Coming into Force on July 1, 2025
New Legislation Enacted
Authors: Rhonda Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP
On September 5, 2024, the Ontario government proclaimed that the new Digital Platform Workers' Rights Act, 2022 (DPWRA) will come into force on July 1, 2025. The Ontario Government also filed O Reg 344/24 under the DPWRA, which contains further rules and obligations, and will also come into force on July 1, 2025.
. For detailed information, visit Littler.com.
SCC Decision Offers Potential Insight into Privacy Rights for Private-Sector Employees
Precedential Decision by Judiciary or Regulatory Agency
Authors: Rhonda Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP
In York Region District School Board v. Elementary Teachers' Federation of Ontario, the Supreme Court of Canada (SCC) provided recommendations for how an alleged breach of an employee's right to privacy under the Canadian Charter of Rights and Freedoms should be analyzed. Although the SCC did not explicitly reference the reasonable expectation of privacy in private-sector workplaces, the analysis undertaken in the case may be worthy of consideration in the private-sector context.
For detailed information, visit Littler.com.
OCA Finds Aggravated Damages Award Can Be Made Without Medical Evidence of Diagnosable Psychological Injury
Precedential Decision by Judiciary or Regulatory Agency
Authors: Rhonda Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP
The Court of Appeal for Ontario (OCA) recently held that an employee may be awarded aggravated damages for an employer's bad-faith conduct during the employee's dismissal even in the absence of medical evidence identifying a diagnosable psychological injury. In Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332, the OCA also rejected the notion that expert medical evidence is required to show whether a terminated employee is physically incapable of mitigating their damages during a reasonable notice period.
BCCA Affirms Enforceability of Termination Clause That Incorporated by Reference Notice and Severance Provisions of Canada Labor Code
Precedential Decision by Judiciary or Regulatory Agency
Author: Rhonda Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP
In Egan v. Harbour Air Seaplanes LLP, 2024 BCCA 222, the British Columbia Court of Appeal upheld a lower court's decision that a termination clause in an employment agreement was enforceable because it was neither ambiguous nor non-compliant with the Canada Labor Code (CLC). The employee's employment contract contained a termination clause, which incorporated by reference the notice and severance provisions of the CLC.
. For detailed information, visit Littler.com.
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